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LEADING    G-f^SES 


PUBLIC    LAND    LAWS 


UNITED    STATES, 


WITH     NOTES    AND    REFERENCES 


BY    J.    VANCE    LEWIS, 

ATTORNEY  AT  LAW. 


WASHINGTON: 

PUBLISHED    BY   J,   VANCE    LEWIS 

T,E  Droit  Building. 

1879. 


Kiitcnd  acionliiii"-  to  Act  of  C'ongi'ess,  in  the  year  1879, 
HY  .1.  VAN'CE  LEWIS, 

In  the  otHcc  of  the  Librarian  of  Congress,  at  VVashin^on. 


T 


Printed  at  the 

Office  OF  the  Washington  Law  Reporter, 

631  F  Street. 


P  R  E  F  A^  C  E  : 


An  attempt  has  been  made  to  collect  in  this  voluralb  the  cases 
upon  the  Public  Land  Laws  of  the  United  States,  of  the  most 
practical  importance  to  the  Bench  and  Bar  of,  what  I  may  be 
allowed  to  term,  the  Public  Land  States  and  Territories.        "■' 

It  is  also  hoped  that  the  volume  may  be  found  of  use  to  those 
having  to  do  with  the  disposition  of  the  Public  Lands,  either  as 
executive  officers,  or  as  attorneys  practicing  before  the  Land 
Department. 

As  the  laws  relating  to  Private  Land  Claims  and  Mineral  Lands 
have  no  application  to  the  body  or  mass  of  the  Public  Lands,  the 
decisions  under  them  have  not  been  given. 

The  arrangement  of  the  decisions  herein  has  been  made,  as 
far  as  practicable,  according  to  their  subject  matter  or  the  legal 
questions  involved  ;  and.  as  nearly  all  questions  arising  under 
the  Public  Land  Laws  may  be  taken  to  the  Supreme  Court  of  the 
United  States,  and  b}'  that  Court  finally  passed  upon,  the  most  of 
the  cases  have  been  selected  from  the  decisions  of  that  Court. 

Washington.  May  L  1879. 


TABLE  OF  CASES  REPORTED. 


Atherton  v.  Fowler ;  cited  640     . 

Bagnell  v.  Broderick  :  cited  312,  650.  663,  670. 

767.  782    «..-..         . 
Baker  v.  Gee  ..... 

Bates  V.  Railroad  Co  ;  cited  54'.» 
Beecher  v.  Wetherby      .... 
Bell  V.  Hearne;  cited  607,  741.  743 

Best  V.  Polk 

Blanc  V.  LaFayette    ..... 
Boyce  v.  Danz       ...... 

Brill  V.  Stiles 

Bronson  v.  Kukuk  .         .         . 

Brush  V.  Ware  ..... 

Calder  v.  Keegan  ..... 

Chotard  v.  Pope;  cited  71 

Cofield  V.  McClelland 

Cooper  V.  Roberts  ;  cited  489    . 

Crews  V.  Burcham  :  cited  332 

Davepport  v.  Lamb;  cited  267,  269 

David  V.  Rickabaugh      .         .         .         .         , 

Doe  V.  Wilson  ;  cited  332,  580 

Donovan  v.  Kloke  ..... 

Easton  v.  Salisbury  :  cited  94.  327    . 
Eldred  v.  Sexton    ...... 

Fenn  v.  Holme  ;  cited  664,  768 

Ferguson  v.  McLaughlin        ... 

Foley  V.  Harrison  ;  cited  163    . 

French  v.  Fyan  ;  cited  449    .... 

French  V.  Spencer  ;  cited  576.  581    . 

Fuller  V.  Hunt 

Garland  v.  Wynn  ;  cited  19,  114,  133,  153,  245,  749 
Gazzam  v.  Phillips         ...... 

Gibson  v.  Chouteau  ;  cited  387,  710 

Gilbert  v.  Thompson      ...... 

Ham  V.  State  of  Missouri  .... 

Harkness  v.  Underbill  ...... 

Heydenfeldt  v.  Mining  Co 

Hogan  V.  Page        ....... 


749. 


PAGE 
1 

656 

,  350 
531 

.  482 
594 

.  307 
736 

,  744 
213 
703 
550 

,    708 

62 

269 

459 

,  579 
249 

,    739 

576 

710 

55 

65 

664 

95 

502 

442 

569 

232 

171 

24 

758 

582 

451 

130 

476 

755 


VI  TABLE    OF    CASES    REPORTED. 

PAGE 

Hooper  v.  Scheimer            .......  663 

Hutf  V.  Doyle 496 

Hughes  V.  United  States  :  cited  334,  638           .         .         .  174 
Hutchings  v.  Low;  cited  6.  167.  382.  647       .         .         .         .73 

Jarvis  v.  Hofl'raaii      .         .         .                            .       •  .         .  237 

Jolmson  V.  Towsley  ;  cited  4.  71.  139,  209.  444,  639,  749,767  142 

Jones  V.  Soulard         ........  529 

Kelley  v.  Wallace 200 

Kirkaldie  v.  Larrabee        .......  230 

Ladiga  v.  Roland  ;  cited  327 275 

Lamb  v.  Davenport            .        '.         .         .         .         •         •  261 

Larriviere  v.  Madegan  .......  332 

Leavenworth,  etc.,  R.  R.  Co.  v.  U.  S. ;  cited  384       .         .  388 

Le  Roy  v.  Clayton  ;  cited  634 598 

Le  Roy  v.  Jamison    ........  608 

Levi  V.  Thompson           ........  725 

Lindsay  v.  Hawes  ;  cited  153.  245,  246,  475,  549.  749,  767  15 

Litchfield  v.  Johason     .....    --^^s:^..  •         •  750 

Litchfield  v.  The  Register  and  Receiver  ;  cited  446           .  722 

Lytlev.  The  State  of  Arkansas  ;  cited  73, 113.  173,  647,  684,  749  97 

Lytle  v.  The  State  of  Arkansas  ;  cited  19,  133,  153,  749  .  112 

McGarrahan  v.  Mining  Co.    .         .         .         .         .                   •  586 

Marks  v.  Dickson      ........  566 

Martin  v.  Marks 447 

Maxwell  v.  Moore 574 

Meader  v.  Norton 769 

Merrill  v.  Hartwell, 564 

Miller  v.  Dale 783 

Miller  v.  p:ilis    .         .  -      .         .         .         .         .         .         •  632 

Minter  v.  Crommelin  ;  cited  54,  684      .....  648 

Missouri,  etc,,  R.  R.  Co.  v.  U.  S 413 

Moore  v.  Robbins           ........  634 

Morton  v.  Nebraska  ........  42 

Myers  v.  Croft ;  cited  267 124 

Newhall  v;  Sanger  ;  cited  501    ......  383 

Oaks  V.  Heaton  ;  cited  235 224 

O'Brien  v.  Perry  ;  cited  475,  565 679 

Parker  v.  Duff 320 

Pollard  V.  Hagan 508 

Railroad  Co.  v.  Fremont  County  ;  cited  437           .         .         •  430 


TABLE    OF    CASES    REPORTED. 


Vll 


PAGE 

Kciilroiid  Co.  v.  Schunneir 535 

Railroad  Co.  v.  Smith  ;  cited  81)5.  446.  449    ....  435 

Railroad  Land  Co.  v.  Courtwriglit 373 

Railway  Co.  v.  McShane  ;  cited  647       .....  685 

Reichart  v.  Felps  ;  cited  54,  94,  311.  327           ...  651 

Rice  V.  Railroad  Conipauy  :  cited  370.  395.  396    .         .         .  335 

River  Bridge  Co.  v.  Railroad  Co 378 

Root  V.  Shields 183 

Ross  V.  Barland  ;   cited  4(».  573.  66-2 671 

Samson  v.  Smiley  .........  158 

Schulenberg  V.  Harriman  :  cited  395.  4H0  354 
Semple  v.  Hagar    .         .                            .         .                            .'715 

Seymour  v.  Sanders                                       .                            .  219 

Shepley  v.  Cowan  ;  cited  640,  647          .....  159 

Sherman  v.  Buick  ;  cited  96,  495.  501        ....  87 

Silver  v.  Ladd.  cited  154,  199 241 

Sioux  City,  etc.,  Railroad  Co.  v.  l'.  1'.  Railroad  Co.          .  424 
Smith  V.  Stevens  .         .                            .         .                   .         .291 

Springfield  Township  v.  Quick           .....  467 

Stalnaker  v.  Morrison;  cited  212                    .         .         .         .  206 

Stark  V.  Baldwin       ........  209 

State  of  Minnesota  v.  Bachelder  :  cited  154.  245                     .  469 

Tate  V.  Carne}' ;  cited  565         .         .         .         .         .         .  1 78 

Turner  v.  American  Baptist  Missionary  Union  ;  cited  328  315 

Union  Pacific  Railroad  Co.  v.  Watts           ....  422 

United  States  v.  McEntee      .         .         .         .         .         .         .217 

United  States  v.  Railroad  Co. ;  cited  429           .         .         .  414 
Van  Reynegan  v.  Bolton        .         .         .         .         .         .         .58 

Verden  v.  Coleman    ........  715 

Verden  v.  Coleman         .         .         .         .         .         .         .         .718 

Walker  v.  Henshaw            .......  298 

Warren  v.  Van  Brunt 133 

Water  and  Mining  Co.  v.  Bugbey 493 

Wilcox  v.  Jackson  ;  cited  222,  334.  399.  727.  741,  749,  768    .  29 

Wilson  v.  Byers         ......          .         ,  728 

Wilson  V.  Wall  ;  cited  332     . 284 

Wirth  V.  Branson       ........  644 

Wright  V.  Taylor 561 

Wynn  v.  Morris         ........  720 

Yosemite  Valley  Case;  cited  6,  167.  382,  647        ..         .  73 


TABLE  OF  CASES  CITED. 


Adams  V.  Burke     ....... 

.\dain.s  County  v.  B.  &  M.  K.  H.  Co 

Adsit  V.  Smith       ....... 

.\in.sworth  v.  Miller  and  Miller  .... 

.\lbee  V.  May  ....... 

.Vldricli  V.  Aldrich     ....... 

Alemany  v.  City  of  Petaluma        .... 

•Almon  V.  Stevens      ...... 

Almonester  v.  Kenton    ...... 

American  Emigrant  Co.  v.  Wright  County 
Anderson  v.  Lewis         ...... 

Armstrong  v.  Treasurer,  &c.     .         ... 

Arnold  v.  Grimes  ...... 

Ashley  v.  P2berts        ....... 

.Vthearn  v.  Poppe  ...... 

Attridge  v.  Billings  ...... 

B,aird  v.  AVolf 

Ballance  v.  Forsyth    ....... 

Hallou  V.  O'Brien  ...... 

liarnard  V.  Ashley  .  .  10,78,114.13 

liarnes  v.  ^Murph}^  ...... 

Barry  v.  Gamble        ....... 

Hates  V.  Herron     ....... 

l>aty  V.  Sale       ........ 

Beard  v.  Fedei'y     ....... 

Bell  V.  Duncan  ....... 

Bell  V.  Parks  . 

Bellinger  v.  White     ....... 

Bellows  V.  Todd     ....... 

Benner  v.  Platter       ....... 

Bennett  v.  Butterworth 

Benson  v.  IMorrow     ....... 

Bester  v.  Rankin 

Uillingsle}^  v.  Bates . 

Bird  V.  Dennison  ...... 


21" 


PAGE 

,    26'.) 

442 

.    563 

142 

.    754 

7.  708 

.    275 

.       '    23 

.    598 

449 

.    297 

598 

565,  742 

297 

.    495 

11 

.    664 

334,  664 

.    492 

;),  151.  173 

.    274 

767 

.    708 

209,  217 

.    782 

561 

12 

703.  712 

.      41 

550 

669,  671 

528 

.    217 

23 

,      19 


X  TATJLE    OF    CASES    CITED. 

PAGE 

Bishop  V.  INIarks         ........  703 

Blair  v.  Patlikiller 332,  579 

Blair  V.  >Vorley 11 

Bliidworth  v.  Lake 50K 

Boardmaii  v.  lieed     ........  6G4 

Bodley  v.  Taylor    .........  552 

Bogart,  hi  re     .         .         .         .                  .         .         .         .  604 

Boggs  V.  Merced  Mining  Co 248,  260,  380 

Bonds  A".  Hickman     ........  314 

Bonis  V.  James      .........  12 

Bonner  v.  Ware         .         .         .         .         .         .         ,         .  561 

Bonney  v.  McLeod         ...                  ....  23 

Boon  V.  Chiles           .         .                   .         ,         .         .         .  556 

Boorman  v.  Sunniichs    ........  550 

Boston  V.  Dodge        ........  12 

Bouldin  v.  Massie           .         .    '     .         .         .         .         .    554,  65i> 

Bowers  v.  Meescher  ........  130 

Bowman  v.  Torr     .         .         .         .         .         .         .         .         .12 

Boyer  v.  Williams      ........  14 

Bracken  v,  Parkenson    ........  171 

Bradshaw  V.  Newman         .         .         .         .         ,         .        ..  11 

Bradshaw  v.  Treat         ........  10 

Brake  v.  Ballon 141 

Branch  v.  Mitchell         .         .         . 450 

Branson  V.  Wirth                .         .         .         .         .         .      •   .  593 

Braxen  v.  Bressler          .         .         .         .         .         .         .         .  550 

Brewer  v.  Bi'evver      ...         .         .         .         .         .         .  142 

Brewster  V.  Madden 129 

Brock  V.  Smith           ........  J> 

Broussard  v.  Dugas        ........  13 

Brown  v.  Belmarde   ........  296 

Brown  v.  Clements    .      .                  ....       28.  104,  54i^ 

Brown  v.  Hunt            ........  23 

Bruggerman  v.  Hoerr .141 

Bruner  v.  Manlove              .         .         .         .         .         ,         .  215 

Bryan  v.  Forsyth  .........  76H 

Bryan  v.  Glass          ......,,  12 

Buckner  v.  Lawrence     ......         .         .  94 

Buena  Vista  County  v.  L  F.  and  S.  C.  R.  R.  Co.      ,         .  442 

Bull  V.  Shaw .  10 


TABLE    OF    CASES    CITED, 


XI 


Bullitt  V.  Taylor        .... 
Burdge  v.  Underwood    ... 
Burgess  v.  Gray        .         .         .         • 

Burke  v.  Gaines 

Burleson  v.  Teeple    .         .         .         , 
Burns  v.  Ilayden    .... 
Bnrrell  v.  II aw  .... 

Burton  v.  Williams 
Bush  V.  Donohue        .... 
Bush  V.  Marshall  ..... 

Bj^ers  V.  Neal 

Cake  V.  Banks        .... 
Camp  V.  Smith  .... 

Campau  v.  Van  Dyke 

Campbell  v.  Clark     .... 

Campbell  v.  Wortman   . 

Canal  Trustees  v.  Havens 

Carman  v.  Johnson 

Carpenter  v.  Lewis    .... 

Carpenter  v.  Montgomery 

Carpenter  v.  AYilliams 

Carr  v.  Allison       .... 

Carroll  v.  Safford       .... 

Carson  v.  Clark      .... 

Carson  v.  Smith         .... 

Castner  v.  Gunther 

Castro  V.  Hendricks  .... 

Cavender  v.  Smith 

Central  Pacific  R.  R.  Co.  v.  Dyer       . 

Chamberlain  v.  St.  Paul  &  S.  C.  R.  R.  Co.    . 

Charles  River  Bridge  v.  The  Warren  Bridge 

Chase  County  v.  Shipman      .         .         .         . 

Cheney  v.  White        .         .         .         .         • 

Cherokee  Nation  v.  Georgia 

Chiniquy  v.  Catholic  Bishop 

Chinn  v.  Darnett 

Chipley  v.  Farris       .         .         .         .         • 

Chouteau  v.  Eckhart 

Christy  v.  Dana 

Church  V.  Gilman 


.  / 


PAGE 

627 
10 
199 
.  722 
12 
.   14 
170 
.  314 
450 
232.  574 
728 
.   23 
232 
.  749 
23 
.  447 
550 
.  714 
8 
.  6G4 
7.22 
.   12 
702,  727 
11 
274 
.  274 
622,  725 
.  742 
10.  372 
.  372 
340,  395 
.  703 
236 
.  396 
216 
314,755 
601,  634 
.  114 
129 
.  627 


Xll 


TABLE    OF   CASES    CITED. 


Cit}^  of  Chicago- V.  Laflin  . 
City  of  Mobile  v.  Emanuel    . 
City  of  Mobile  v.  Eslava  . 
City  of  Mobile  v.  Hallet 
City  of  New  Orleans  v.  Armas 
Clark  V.  Akers       .... 
Clark  V.  Baker  .         .         .         .         - 
Clark  V.  Bayle}^      .... 

Clark  V.  Hall 

Clark  V.  Libbey     .         .         .         - 
Clark  V.  Schultz'       .... 
Clark  V.  Smith        .... 
Clarke  v.  Fay    ..... 
Clarksou  v.  Buchanan    . 
Clements  v.  Warner 
Climer  v.  Selby      .... 
Climer  v.  Wallace      .... 
Cocke  and  Jack  v.  McGinnis 
Coleman  v.  Fish-ho-mah    . 
Collins  V.  Bartlett  .         .         . 

Colorado  Company  v.  Commissioners 
Com.  V.  The  Erie  and  N.  E.  R.  R.  Co. 
Comegys  v.  Vasse  .... 
Comet  V.  Winton  .... 
Comm'rs  of  Franklin  Co.  v.  Pennock 
Conger  v.  Weaver 
Cook  V.  Foster  ... 

Copley  V.  Dinkgrave 
Cornwell  v.  Culver     .... 
Courtney  v.  Perkins     . 
Cousin.  V.  Blanc  .... 

Cousin  V.  Labatut .... 
Coj-  V.  Coy         ..... 
.  Coyell  V.  Cain        .... 
Crandall  v.  Woods    .... 
Crittenden  v.  Johnson   . 
Crittenden  v.  Woodruff 
Cruise  v.  Riddle     .... 
Cummins  v.  Scott      .... 
Cunningham  v.  Ashley 


PAGE 

550 

.    525 

525 

.    525 
722 

.    297 
129.  232 
.    224 
314 
.    297 
13 
.     314,  408.  491 
275 
.    447 
749 
.    171 
23 
.    572 
311,314 
11.  24,  651.  755' 
702 
.    346 
19,  173 
579 
70-2 
10 
11 
171 
.62 
170 
182 
722' 
274 
9 
9 
9- 
9 
94 
9 
18,  114,  173,  684,  767 


57> 


TABLE   OF   CASES    CITED.  Xlli 


PAGE 

.  601 
728 

.  744 
495 

.  170 
314 


Cunniiiglmm  v.  Browning       .>•••• 

Cupps.  V.  Irvin  .  •  ■  ^  •  " 

Curtis  V,  Hunting  .         >         .         .  • 

Damrell  v.  Meyer      .  •         •         •         •         ' 

Danforth  v.  IMorrical      ..•••-• 

Danforth  V.  Tliomas  .         .  •         ■ 

Danforth  V.  Wear  -         •         ■  •    ^^^^^ 

Daniel  V.  Pervis di4,  44/ 

Dart  V.  Hercules    .  •         •  •• 

Dawson  \%  Merille     .         .         .  •  • 

Dean  v.  AVade        .         • 

Denver  City  v.  Kent 
Dequindre  v.  Williams 

Desmont  v.  Stone     >  ^  '  

Dewey  v.  Campau  .         '  •         -  • 

Dewey  v.  Williams    .         •         •  ^ 

Dillingham  v.  Brown      .         •         •         > 

Dixon  V.  Caldwell     .         •         ••         ^  •         '  _ 

Doddridge  v.  Thompson         .-••■• 

Dodge  V.  Perez  .         ^ 

Doe  V.  Beebe  .         .         .  • 

Doe  V.  City  of  Mobile J22 

Doe  V.  Eslava •         -         .    181,  722 

Doe  V.  Wroot    .  

Dolhequy  v.  Tabor 

Dollv.  Meader  .         • -         606 

Donner  V.  Palmer  .         .         .         •  •     (?01,  634 

Doswell  V.  De  La  Lanza  .         •  .607 

Dovaston  v.  Payne '^""^ 

Downes  v.  Scott  .  .         ,         .  *  ^^ 

Doyle  V.  Knapp ^■'^- 

Dredge  v.  Forsyth "'^^ 

Dubuque  and  Pacific  R.  R.  Co.  v.  Litchfield  .     394,  395,  565 

Duke  V.  Balme .         .         /uo 

Duncan  v.  Hall      .         • ^ 

■  Duncan  v>  Potts ^ 

Dunch  V.  Kent ^^^ 

Dunklin  County  v.  District  Court 469 

Dunn  V.  Hearick •         '         •         •    ''^^ 

Dunn  V.  Schneider     .         .         -         «         -         ^         •         >         205 


447 

229 

13 

275 

298 


313 
371 

768 


282 
664 
528 


666 
170 


XIV 


TAIJLE    OF   CASES    CITED. 


■  J)ui):is  V.  Wussell 
Durfee  v.  Plaisted 
Dutton  V.  Strong    . 
Dyson  v.  BrsuLshaw    . 
Easley  v.  Kellom  . 
Edwards  v.  Trac}' 
Elliott  V.  Peirsol    . 
Ellis  V.  Mosier 
Ely  V.  Ellington     . 
Emerson  s'.  Sansome 
Estrada  v.  ]\Iur})liy 
Evans  v.  FoLsoni 
Everett  v.  AVells     . 
Fackler  v.  Ford 
J'alkner  v.  Jones    . 
Falkner  v.  Leith 
Farish  v.  Coon 
Faruswortli  v.  Railroad  Co. 
Farrington  v.  Wilson     . 
Feirbaugh  v.  iSIaterson 
Fenwick  v.  Gill 
Ferguson  v.  McCain 
Fessler  v.  Haas 
Field  V.  Seabury 
Finch  V.  Risele}'     . 
Finley  v.  Williams    . 
Fipps  V.  McGehee 
Fischer  v.  Eslaman   . 
Fisher  v.  AVisner    . 
Fitzpatrick  v.  Dubois 
Fletcher  v.  Peck    . 
Fletcher  v.  Pool 
Floyd  V.  Ricks 
Forbes  v.  Hall  . 
Fore  V.  AVilliams    . 
Forsyth  v.  Small 
Fort  V.  Wilson 
Foster  v.  Brost 
Foster  v.  xs  eilson    . 
Franklin  v.  Palmer    . 


PAGE 

8 
651 
549 
9 
199 
275 
33 
12 
13 
10 
767 
141 
405 
192,  232 
728 


727 

528 

372 

.  296,  702 

11 

.  205 

9 

.   12 

199 

.  372 

154 

.  284 

216 

.  703 

205 

.  340,  408 

450 

9 

171 

.  315 

550 

.  708 

130 

327,  331,  332,  519 

216 


TABLE  OF   CASES  CITED. 


XV 


Frederick  v.  Gray 
Fremont  v  United  States 
French  v.  Carr 
Friedman  v.  Goodman 
Frisbie  v.  Whitney- 
Fulton  V.  McAffee     . 
Gaines  v.  Nicholson 
Gaines  v.  Thompson 
Gale  V.  Davis 
Galind  v.  Whittenmeyer 
Gallowa}'  v.  Finle}^ 
Gait  V.  Galloway 
Gardiner  v.  Miller 
Garner  v.  Willett 
Garrison  v.  Sampson 
Garcia  v.  Lee    . 
Gaston  v.  Stoll 

Gavit  V.  Champers    . 

Genesee  Chief 

Gibbons  v.  Dillingham 

Gibbons  v.  Ogden 

Gibson  v.  Chouteau 

Gibson  v.  Hutchings 

Gile  V.  Hallack 

Gillett  V.  Caffney 

Gilman  v.  Philadelphia      . 

Gilman  v.  Riopelle 

Gilmer  v.  Poindexter 

Glasgow  V.  Hortiz 

Gleason  v.  Edmunds 

Godfrey  v.  Beardsley     . 

Goodtitle  v.  Jones     . 

Goodtitle  v.  Kibbe 

Graham  v.  Roai-k 

Graham  v.  United  States 

Grand  Gulf  R.  R.  and  B.  Co 

Granger  v.  Swart  . 

Grant  v.  Smith 

Gray  v.  McCance  . 

Gray  v.  Stockton 


2,  6,  73,  167,  382,  386,  647 


296. 


INIarshall 


PAGE 

297 
786 
11 
528 
749 
721 
331,  464 
446.  723 
.   14 
768 
256,  575 
256 
768 
643 
9 
520 
447 
550 
548 
9 
521 
766 
13 
224 
11 
194 
205 
459,  664 
565 
11 

313,  608 
666 
528 
9 
60 
598 
534 
508 
170 
200 


17 


XVI 


TABLE  or  CASES  CITED. 


PAGE 

Greer  v,  Biddle 

.    754 

Green  v.  Liter 

154,  COl 

Green  v.  Wood 

.    405 

Green  v.  Mezes 

664 

Grignon  v.  Astor  ....•• 

.    603 

Griffin  v.  Cotton        ...... 

12 

Griffing  v.  Gibb 

.    528 

Grover  v.  Ilawley      .-...• 

10 

Guidry  v.  Woods 

.    171 

Guy  V.  Ilermance 

528 

Gwynne  v.  Niswanger 

.    703 

Gygar's  Estate 

479 

Haas  V.  Misner 

.    702 

Haffley  v.  ^Maier 

232 

Haight  V.  City  of  Keokuk     .... 

.    535 

Hale  V,  Gaines          ...... 

722 

Hale  V.  Wilder 

.    297 

Hall  V.  Ashley 

274 

Hall  V.  Doran 

.    274 

Hall  V.  Dowling 

702 

Hall  V.  Russell 

.    269 

Hamilton  v.  Fowlkes 

.    141 

Hamilton  v.  Walters          ..... 

12 

Hanrick  v.  Barton           .         .         .         -         . 

.    314 

Harden  v.  Cullens     ...... 

14 

Harden  v.  Ho-3'o-po-nubby     .... 

.    313 

Harmon  v.  Partier 

297 

Harrington  v.  Saint  Paul  and  S.  C.  R.  R.  Co. 

.    274 

Harrington  v.  Sharp           ..... 

129 

Harris  v.  Barnett 

.     314,  315,  332 

Harris  v.  McKissack 

296 

Hastings  v.  Jackson 

.    508 

Hatfield  v.  Wallace 

13 

Hawkins  v.  Johnson 

.    561 

Heath  v.  Ross 

766 

lledley  v.  Leonard         ..... 

.    94 

lledrick  v.  Hughes 

314 

Hellon  V.  Sapp 

.      13 

Hemphill  v.  Davies 

10 

Henderson  v.  Poindexter 

.    517 

TABLE  OF    CASES  CITED.  XVH 

PAGE 

Henderson  V.  State  of  Tennessee      .         .         •         •  '^•■*  '"^^ 

llenman  v.  Warner _ 

Henry  v.  Welsh •         •         '  ^     ,  _ 

Henshaw  v.  Bissell ^^^'  '^' 

Herriot  v.  Bronssard  .         • 

Hess  V.  Bollinger 

Hester  v.  Kembrough 

Hestres  v.  Brennan 

Hickey  v.  Starke 

Hicks  V.  Butrick ' ' 

Houehton 93,492 


13 
171 
171 

171 
721 


170 


Higgins  V 

Hildebrand  v.  Stewart 

»T.ii       T»r-ii                                                                          .  170.  651 

Hill  V.  Miller 

,  .  .        i  z 

548 

10 

331 

.708 
94 


371 

232 


Hill  V.  Smith          . 

Hine  v.  Trevor 

Holden  v.  Andrews 

Holden  v.  Joy 

Holland  V.  Hensley 

Holt  V.  Hemphill 

Hoofnagle  v.  Anderson '^^^ 

Hooper  v.  Cummings 

Hope  V.  Stone 

Hosmer  V.  Wallace    ,         .         , ^^^ 

Hot  Springs  Cases •         •         •      ^ 

Houston  V.  Walker ^^^ 

Hughes  V.  Sloan '      ^  ^ 

Huiick  V.  Scovill •         •         ^'^^ 

Hunnewell  v.  Cass  County J^'^ 

Hunt  V.  Rousmaniefs  Adm"r ^^^ 

Hunt  V.  Wickliffe •         •         ■    ^'^^ 

Hunter  v.  Hemphill ^^^ 

Huntingdon  v.  Grantland ^^^ 

Huntington  v.  Allen ^^^ 

\lutton  V.  Frisbie  .         - 

Independence  Town  Co.  v.  DeLong  .         •         •         "_      ^^* 

Insurance  Co.  v.  Canter 331,  332 

Iowa  R.  R.  and  Land  Co.  v.  Adkins  .         •         •  'J'36,  755 

•TO 

Irvin  V.  Rotramel ^o 

T     ■  574 

Irvine  v.  Irvine .         ^  • 

Irvine  v.  Marshall -      56o,  741,  768 


XVlll  TAULE    OF    CASES    CITED. 

PAGE 

Isaac  V.  Steel 215 

Jackson  v.  Bani     .........    76G 

Jackson  v.  Bodle       ........         627 

Jackson  v.  Dunlap         . 627 

Jackson  v.  Hudson    ........         491 

Jackson  V.  Lawton         .......     177,248 

Jackson  v,  Neeh'       ........         559 

Jackson  v.  Phelps        ....  ....    627 

Jackson  v.  Spink       ........         728 

James  v.  Snelson 14 

Jenkins  v.  Gibson      .......  13,  94 

Johns  V.  DeRome  .........    298 

Johnson  v.  Ballon 372 

Johnson  v.  Gilfillan        ........    708 

Johnson  v.  Home      ........  94 

Johnson  v.  Houghton 728 

Johnson  v.  Mcintosh 490,  578 

Jones  V.  City  of  Petahima     .         .         .         ,         .         .         .    275 
Jones  V.  Donahoo     ........  12 

Jones  V.  Kimble    .........      23' 

Jones  V.  Pettibone     ........         550 

Jones  V.  Tainter    .         .         .         .         .         .         ,         .         .    129 

Jones  Y.  Walker 297 

Jones  V.  Whedis 13 

Jones  V.  Yoakum       .         .         .         .         .         .         .         .         236 

Jordan  v.  UpdegvafF 12 

Judson  V.  Stephens   ........         217 

Kansas  Indian  Tax  Cases 332,  702 

Keeler  v.  Brickey 314,  447 

Keeran  v.  Allen     .........    447 

Keeran  v.  Griffith 447 

Keeton  v.  Andsley  .         .         .         .         .         .         .         .14 

Kellar  v.  Belleaudeau ,         714 

Kelle}^  v.  JNIack      .         .         . 10 

Kennedy  v.  McCartney      .......         298 

Ken3'on  v.  Qninn 129 

Kerby  v.  Fogleman ,         .         170 

Kerr  v.  Mack  ••.......    200 

Kerr  v.  Watts 200,  556 

Key  V.  Jennings     .........    708 


TABLE    OF    CASES    CITED,  XIX 

PAGE 

Kissell  V.  St.  Louis  Public  Schools    ....          529,  531 

Kittridge  v.  Beard  .         .         .         .         .         .         .         .171 

Kizer  v.  Lock    .........         142 

Klein  v.  Argenbright      .......    708,  742 

Knight  V.  Elliot 23 

Knox  V.  Pulliam    .         .         .         .         .         .         .         .         .171 

Kranse  v.  Means       ........         755 

Krant  v.  Crawford  ........    550 

Lamb  v.  Wakefield 269 

Lammers  v,  Nissen         .         .         .         .         .         .         .     -    .    535 

Lamont  v.  Stimson    .         .         .         .         .         .         .         .         171 

Land  v.  Land         .........    314 

Landes  v.  Brant         ........  573,  574 

Lanfear  v.  Hunley  ........    722 

Langlois  v.  Coffin      .         .         .         .         .         .         .         .         314 

Lapeyre  v.  United  States      .......    601 

Lavergne  v.  Ellkin     ........         634 

Lawrence  v.  Grout  .         .         .         .         .         .         .         .447 

LeBeau  v.  Armitage  ........         685 

Lechler  v.  Chapin  .........    275 

Lee  V.  Parker 199 

Leech  y.  Ranch 274 

Leroy  v.  Carroll         ........         768 

Lessieur  v.  Price 346,  369,  504,  722,  766 

Lestrade  v.  Barth       .         .         .         .         .         .         .         .         767 

Lewen  v.  Smith      .........      23 

Lewis  V.  Lewis  .........         170 

Lewis  V.Love          .........    297 

Lick  V.  Dias 602 

Lindersraith  v.  Schwiso  .......      13 

Lindsey  v.  Miller 768 

Lindsey  v.  Sellers  ........      13 

Litchfield  v.  Hamilton 261 

Littleton  v.  Cross .    766 

Long  V.  Culp 703 

Long  V.  McDonald 297 

Longworth  v.  Worthington        ......         754 

Lonsdale  v.  Portland  City      .......        8 

Lorimer  v.  Lewis       ........  12 

Lott  V.  Proudhomme      .......     601,  634 


XX  TABLE    OF   CASES    CITED. 

PAGE 

Lowery  v.  "Weaver     ....•«.•         296 
Lownsberr}''  v.  Rakestraw      .......    297 

Lj^ell  V.  iSIajmard 744 

Lynch  v.  Benial 766 

McAfee  v.  Keiru 314 

McArtlmr  v.  Browder 154 

McArthur  v.  Phoebus 200 

McCarthy  v.  Mann 574 

]McClaren  v.  Wicker  .......         569 

McClintock  v.  Bryden    .         .         .         .         •         •         •         .10 

McCluny  v.  Sillman  .......         725 

McCormick  v.  Iluse       ........      24 

McCue  V.  Smith 141 

McDaniel  v.  Orton 714 

McDonald  v.  Edmonds 10 

McDonald  v,  Gaylor 8 

McDonald  v.  Smalley 256 

McDowell  V.  Morgan      .         .         .         .         .         -         •         -    217 

McElyea  v.  Hayter 563 

McFarland  v.  Culbertson 14 

McFarland  v.  Mathis         .......  9 

McGary  v.  Hastings      ,.,.....      62 

McGehee  V.  Wright  .        ,         .         .         .         .         -         •         170 

McGoon  V.  Scales  .         . 702 

Mclntire  v.  Wood 725 

Mclver  v.  Reagan  ........    571 

McLane  v.  Bovee 68.5 

McMahon  v.  Welsh         .         .        .         .         ...         .703 

McStay  V.  Friedman 722 

McTaggart  v.  Harrison  .         .         .         ,         .         .         .27.5 

Mack  V.  Brammer      .         ,         .         .         .         .         .         .         561 

Mackay  v.  Dillon 722 

Maguire  v.  Tyler 598,  603,  722 

Maguire  v.  Vice     .........    768 

Mahony  v.  Van  Winkle     ......  62,  205 

Mankato  v.  Meagher 274 

Marbury  v.  Madison  .......         601 

Marston  v.  Rowe 141 

Martin  v.  Carlin 23 

^Martin  v.  Hunter .         -         .114 


TABLE  OP  CASES  CITED.  XXI 

'  PAGE 

Martin  v.  Nash 728,  744 

Martin  v.  United  States  .......    782 

Martin  v.  Warldell 520 

Martz  V.  Williams 23 

Matthews  v.  Rector  ........         703 

Matthews  v.  Zane  .......     673,  722 

May  V.  Baskin  .........  23 

May  V.  Symnies     >         -         .         .         .         .         .         .         .142 

Ma3'ers  v.  B\'rne        ........         492 

Maynes  v.  Veale    .........    755 

Maxfield  y.  Bierbauer         .......  13 

Mechanics  Bank  v.  N.  Y.  etc.,  R.  R.  Co 706 

Megerie  v.  Ashe        ........         495 

3Ieigs  V.  McClung 332 

Merrell  v.  Legrand    ........  13 

Mertins  v.  Joliffe  .........    560 

^Nliami  County  v.  Breckenridge  .....         703 

Millauder  y.  Lalande      .         .         .         .         .         .         .         .170 

Miller  y.  Dayis 141 

Miller  v.  Kerr         .........    553 

Miller  y.  Leian  ........  12 

JNIiller  v.  Little 224 

Mills  y.  Lockwood     ........         735 

Mills  y.  Saint  Clair  County 345 

Mills  y.  Stoddard 314 

:Ming  y.  Truett       .         .         .         .         .         .         .         .         .274 

Mining  Company  y.  Boggs        ......         722 

Minter  y.  Shirley  ........     492,  651 

Missouri,  etc.,  R.  R.  Co.  y.  Kan.  P.  R.  R.  Co.  .         .         .         429 

Mitchell  y.  Cobb 170 

Mitchell  y.  Parker 199 

Mitchell  y.  Ryan 602 

Mitchell  V.  United  States 332 

Monette  y.  Cratt    .........    335 

Montgomery  y.  Whiting    .         .         .         .         .         .         .  10 

Moore  y.  Bennett  ........    560 

Moore  y.  Besse.         .         .         .         .         .         .         .         .         129 

Moore  v.  Fields      .........      14 

Moore  y.  Hill 655 

Moore  y.  Hunter 561.  744 


XXll 


TABLE  OF   CASES  CITED. 


PAGE 

Moore  v.  Jordan         ..... 

129 

Moore  v.  Maxwell      .         .         .         .         • 

569 

Moran  v.  Palmer 

.    744 

Morancy  v.  Ford        .         .         .         •         - 

170 

Moreland  v.  Page 

.    722 

Morgan  v.  Curtenius          .... 

129 

Morgan  v.  Reading        ..... 

•    550 

Moriart}'^  v.  Boone  County 

703 

Mortin  v.  Blankership       .... 

.         .         714 

Morton  v.  Smitli 

.    563 

Mumford  v.  McKinney      .... 

94 

Mungosah  v.  Steinbrook         .... 

.    297 

Neff  V.  Paddock 

23 

Nelson  v.  Sims 

.    171 

New  Jersey  v.  Wilson 

702 

Newman  v.  Doe 

.    311 

New  Orleans  v.  United  States 

311,  528 

New  York  Indian  Tax  Cases 

.    702 

Nichols  V.  Nichols 

563 

Nicks  V.  Rector 

.    171 

Nicoll  V.  N.  Y.  and  Erie  R.  R.  Co.    . 

371 

Niles  V.  Anderson 

.     297,  311 

Nolan  V.  Gwyn 

297 

Nolen  V,  Parmer 

.      23 

Norman  v.  Ellis 

13 

Northern  Railway  Co.  v.  Gould     . 

.      10 

Nycum  v.  McAllister        .... 

229,  235 

Ohio  Life  and  Trust  Co.  v.  DeBolt 

.    345 

Owings  V.  Norwood 

719,  721 

Pacific  Railwaj^  Co.  v.  Lindell 

.    459 

Page  V.  Ilobbs 

8,9 

Page  County  v.  B.  and  M.  R.  Railroad  Co.    . 

.    442 

Parker  v.  Great  W,  Railway      .         .         .         . 

346 

Parker  v.  Winsor 

.    702 

Parkinson  v.  Bracken         .         ,         .         .         . 

643 

Parsons  v.  Bedford         .         .         .         .         . 

.    668 

Patten  v.  Richmond           .         .         .         .         . 

224 

Patton  V.  McClure 

.    572 

Patterson  v.  Jenks 

314 

Patterson  v.  Tatum 

.    643 

TABLE    OF    CASES    CITED. 


XXIU 


Patterson  v.  Winn 

Pawlet,  Town  of,  v.  Clark 

Fearce  v.  Tranturn    .         .         •         •         • 

Peck  V.  Miama  County 

Pelham  v.  Wilson  .         .         .         • 

Penn  v.  Ott 

Pennock  v.  Monroe        .         .         •         • 

Pennybecker  v.  McDougal 

People  V.  Black  Diamond  C.  and  M.  Co. 

People  V.  Brown 

People  V.  Cohen 

People  V.  Gilbert 

People  V.  Morrison         .         .         .         • 

People  V.  Shearer 

People  V.  State  Treasurer 

Pepper  v.  Dunlap      .         .         •         •         • 

Perrine  v.  Chesapeake  Canal  Co.  . 

Perry  v.  Ashby 

Perry  v.  Superior  City 

Pettit  V.  Pettit  ....•• 

Phelps  V.  Kellogg  .         .         .         •         • 

Phillips  V,  Irwin 

Phillips  V.  Moore 

Phillips  V.  Sherman 

Pickens  v.  Harper  .         .         •         • 

Pico  V.  United  States         .... 

Pier  son  v.  David 

Pin  V.  Morris    ....•• 

Plume  V.  Steward 

Polk  V.  Wendell  .         •    54,  312,  327, 

Pollard  V.  Files 

Pollard  V.  Kibbe 

Presbury  v.  Morris 

Preston  v.  Browder         .... 

Price  V.  Curran 

Primot  V.  Thibodeaux  .... 

Quiun  V.  Kenyon 

Quinney  v.  Dcnney        .         .         .         • 

Railroad  Co.  v.  Tenis         .         .         .         . 

Railway  Co.  v.  Prescott 


PAGE 

593,  608,  G64,  782 

.  33'.t 

13 

702 

;t 

12;i 
297 
11,  755 
702 
371 
702 
764 
702 
702 
565 
12 
345 
240 
275 
297 
130,  232 
601 
.  728 
598 
.  291 
60 
130,  232 
14 
10 
341,  552,  650,  659,  664 
522,  525 
.   113,  522,  525 
707 
.  314 
13 
.  170 
129,  205 
.  296 
372 
.  427,  699,  706 


XXIV 


TABLE   OF   CASES    CITED. 


Randall  v.  Edert  . 

.    200 

KanduU  v.  Kreiger    . 

563 

Rankin  v.  Miller    . 

.    714 

Raser  v.  Quaills 

. 

11 

Ratcliff  V.  Bridger 

.      12 

Rector  v.  Ashley 

722 

Reed  v.  Marsh 

.    •     .722 

Reeder  v.  Barr  . 

. 

559 

Reichart  v.  Felps  . 

.    656 

Reil}'  V.  Heish  , 

62 

Reynolds  v.  McArtluu 

.    282 

Rex  V.  Barrell  . 

405 

Rex  V.  Poor  Law  Commrs'     .... 

.    405 

Rhea  v.  Hughes 

. 

8 

Rice  V.  Ruddiman 

, 

.    528 

Rich  V.  ilaples 

9 

Richards  v.  Emswiler 

, 

.    130 

Richmond  Railroad  v. 

The  Louisa  R.  R.  Co.     . 

345 

Ridgway  v.  Ludlow 

. 

.    550 

Robbins  v.  Bunn 

217,637 

Roberts  v.  Cooper 

, 

.    467 

Robertson  v,  Phillips 

. 

12 

Robertson  v.  Wood 

.    72S 

Robinson  v.  Campbell 

. 

667 

Robinson  v.  Forrest 

. 

.    447 

Roe  V.  Head 

. 

66& 

Rogers  v.  Brent 

. 

.     215,  728 

Rondell  v.  Fay  . 

, 

314 

Rose  V.  Bnckland  . 

. 

.    563 

Rose  V,  Treadway 

141 

Rush  V.  Casey 

.      62 

Russell  V.  Defrance  . 

. 

14 

Russell  V.  Lowth    . 

.    224 

Rutherford  v.  Green 

110,  162,  368- 

Rutledge  v..  Murphy 

.    170 

Ryan  v.  Brown 

550 

Rj^an  V.  Thomas    . 

.    722 

Sacramento  Savings  Bank  v.  Haj'nes 

170,  205 

Saint  Clair  County  v. 

Lovington    . 

.    550 

St.  Peter  County  v.  Bunker        ,         .         .         , 

141,  142 

TABLE  OF  CASES  CITED. 


XXV 


Sands  v.  Adnms  County 

Sankey  v.  Noj'es         .... 

Sargent  v.  Kellogg         .         .         .         • 

Sawyer  v.  Cox 

Schnee  v.  Scbnee  

Schnrmeir  v.  St.  P.  and  P.  Railroad  Co. 

Scott  V.  Evans 

Scuddy  V.  Shaffer      .... 

Seaton  v.  Sharkej^  .         .         .         • 

Secretary  v.  McGarrahan 

Seely  v.  Wells        .         .         .         .        •• 

Selby  V.  Cash    ,         .         ■         •         • 

Sensenderfer  v.  Smith   .         .         .         • 

Serrano  v.  United  States 

Seymour  v.  Watson       .         .         .         . 

Shaffer  v.  Scuddy      .... 

Sharon  v.  Wooldrick 

Shaw  V.  Boyd 

Sherrer  v.  Bullock 

Sherry  v.  Sampson    .... 

Sillyman  v.  King  .         .         .         ■ 

Silver  v.  Ladd  .... 

Sims  V.  Liveh^       .         .         .         .         < 

Singleton  v.  Pouchard 

Sloan  V.  Moore 

Smith  V.  Ad  sit  .... 

Smith  V.  Athern     .         .         .         - 

Smith  V.  Johnson      .... 

Smith  V.  Mosier     .... 

Smith  V.  Pipe    .         .         ^         »         . 

Smith  V.  Shane      .         .         .         - 

Smith  V.  Sheeley        .... 

Smith  V.  Troup      .... 

Snow  V.  Ferrea  .... 

Snow  V.  Flannery 

Society,  etc.,  v.  Pawlet     . 

Soulard  v.  United  States 

Southard  v.  Central  R.  R.  Co.  . 

Sparrow  v.  Strong 

"Spaulding  v.  Martin 


23 


446 


PAGE 

703 
14 

11 
315 
561 
547 
561 
508 
129 
723 
314 
275 
736 
786 

11 
722 
335 


9 
275 
728 
722 
345 
664 
13 
722 
.  643 
130 
.  573 
275 
.  563 
127 
.  572 
130 
141,  229 
754 
.   53 
371 
.  267 
400 


XXVI 


TABLE  OF    CASES  CITED. 


Sperlin  v.  Millikin  .... 

Stark  V.  Barnes 

Stark  V.  Starrs       .... 

State  V.  Delesdenier 

State  V.  Dent         .         ,         .         . 

State  V.  Jonssen 

State  V.  Stringfellow 

Stauffer  v.  Stephenson 

Steamboat  INIagnolia  v.  Marshall   . 

Stein  V.  Ashby 

Stephens  v.  Mansfield    . 

Stephens  v.  Westwood 

Stephenson  v.  Goff 

Stephenson  v.  Smith 

Stephenson  v.  Wilson    . 

Stevens  v.  Hatch 

Stewart  v.  Boyd     .... 

Stewart  v.  Chadwick 

Stockton  V.  Williams     , 

Stoddard  v.  Chambers 

Stoddard  v.  Smith 

Stone  V.  Young 

Stourbridge  v.  Wheeley 

Stout  V.  Hyatt  .... 

Stover  V.  Bounds  .         .         .         . 

Stringer  v.  Young 

Strong  V.  Rachel    .         .         .         . 

Strother  v.  Lucas 

Stryker  v.  Polk  County 

Stubblefield  v.  Branson      . 

Sullivant  v.  Weaver 

Summer  v.  Spybuck 

Supervisors  of  Whitesides  County 

Surget  V.  Little 

Sweatt  V.  Corcoran 

Switzer  v.  Skiles 

Tartar  v.  Hall 

Tartar  v.  Spring  Creek  Mining  Co 

Tarvee  v.  Smith     .         .         .         , 

Taylor  v.  Baker 


PAGE 

13 

1,52,  24G,  647,  749,  767,  782 
400 
.  459 
170 
.  492 
315 
.  550 
24 
.   10 
643 
.  535 
171,  767 
.  563 
602 
.   23 
12 
313,  329 
57,  94,  311,  327,  574,  664 
.  561 
12 
.  346 
492 
.  728 
94,  664 
.  129 
669 
.  261 
13 
.  261 
291 
.  447 
651 
.  651 
11 
10,  232 
9 
.  297 
11 


V,  States  Attorney 


TABLE    OF    CASES    CITED. 


XX  VH 


Taylor  v.  Brown     . 
Taylor  v.  Mortin 
Taylor  v.  Underbill 
Terrett  v.  Taylor 
The  Cherokee  Tobacco  Case 
The  Clinton  Bridge  . 
The  Jefferson 
Theroit  v.  Chandoir  . 
Thomas  v.  Wyatt  . 
Thompson  v.  Holton 
Thompson  v.  Myrick     . 
Thompson  y.  Prince  . 
Thompson  v.  Thornton 
Thompson  v.  True 
Thredgill  v.  Pintard 
Thurston  v.  Alva 
Tibbals  v.  Jacobs 
Toland  v.  Mandell     . 
Tomlin  v.  D.  B.  &  M.  R.  R.  Co 
Townsend  v.  Little    . 
Towsley  v.  Johnson 
Treadwa}^  y.  Sharon  . 
Treadway  v.  Wilder. 
Trimble  v.  Boothby  . 
Tucker  v.  Ferguson 
Turley  y.  Tucker 
Turney  v.  Fish 
Turney  v.  Saunders  . 
Tyler  y.  Maguire    . 
Udell  V.  Davidson     . 
U.  M.  &  M.  Co.  v.  Dangberry 
U.  M.  &  M.  Co.  y.  Ferris 
United  States  v.  Arredondo  . 
United  States  v.  Brooks    . 
United  States  v.  Brown 
United  States  y.  Commissioner 
United  States  v.  Cook   , 
United  States  v.  Dixon 
United  States  v.  Gear    . 
United  States  v.  Gratiot   . 


128,  132, 


PAGE 
.     171 

331 

.    528 

339 

.   331 

331 

348 

13 

256,  750 

703 

335 

769 

447 

492 

232,  267 

141 

602 

500 

535 

9 

209,  212 

14 

141,  275 

261 

372,  702 

14 

284 

11 

722 

722 

219 

769 

.     311,  659 

314,  332 

.    219 

725 

397,  408,  491 

411 

.    319 

221 


XXVlll 


TABLE   OF   CASES    CITED. 


PAGE 

United  States  v.  Hoar   .... 

.    7G4 

United  States  v.  Hughes 

177,  334,  638 

United  States  v.  Morillo 

.      ^  .    782 

United  States  v.  Ortega    .         .         ,         . 

.  '       782 

United  States  v.  Repeutigny 

.    371 

United  States  v.  Sanchez 

782 

United  States  v.  Shanks 

.    298 

United  States  v.  Stanley  .         .         .         . 

7 

United  States  v.  Stone 

.       178,327,606,637 

United  States  v.  Throckmorton 

.         .         414 

United  States  v.  Vallejo 

8 

Vallette  v,  Bennett    .         ,         ,         ,         . 

216 

Van  Rensselaer  v.  Kearney   . 

.    574,  581 

Veeder  v.  Gappy 

491 

Vest  V.  Weir           ..... 

.      12 

Vickroy  v.  Pratt        .         .         .         .         . 

12 

Walcott  V.  Desmoines  Navigation  Co     . 

-    402,  437,  753 

Walden  v.  Bodley     .         .         .         .         , 

178 

Wales  V.  Bogue      ,         ,         .         .         . 

.    216 

Walker  v,  Shephardson     .         .         .         . 

550 

Walker  v.  Smith 

.    725 

Wallace  v.  Wilson     .         .         .         .         . 

728 

Walworth  V.  Kneeland 

.    722 

Warburton  v.  Mattox        .         .         .         . 

232 

AVard  v.  Mulford 

.    528 

Watkins,  ex  parte      .         .         .         .         . 

604 

AVatson  v.  Voorhees       ,         .         .         , 

.    236 

AVatterson  v,  Bennett        .        .        .         . 

607 

AA^atterson  v.  Kirkwood 

.    129 

AA^eaver  v.  Fairchild  .         .         .         . 

205 

Webb  V.  Sturtevant       .... 

.      11 

Weber  v.  Marshal      .         .         .         „ 

767 

AA'^eimer  v.  Lowery          .... 

.      10 

Weisberger  v.  Tenny 

274 

Welborn  v.  Spears         .        .        .         . 

.      13 

AATelch  v.  Brj^an          .... 

14 

AVells  V,  Riley 

.    754 

AVells  V.  Thompson   ^        ,         .         . 

284 

Wharton  v.  Littlefield 

.      23 

AVhitaker  v.  Gautier 

n 

TABLE  OF  CASES  CITED. 


XXIX 


Whitesides  v.  Rickey     . 

"Whitney  v.  Buckraan 

Whitney  v.  Gunderson 

Whitney  v.  Morrow  . 

Wiggins  V.  Guier  . 

Wilcox  V.  Howell 

Wilcoxon  V.  McGehee    . 

Wilkerson  v.  Mayfield 

Williams  v.  Baker 

Williams  v.  Booker  . 

Williams  v.  Carpenter    . 

Willis  V.  Bucher 

Wilkins  v.  McCue 

Wilson  V,  Mason    . 

Winfleld  Town  Co.  v.  INlaris 

Winn  V.  Patterson 

Wood  V.  Ferguson     . 

Wood  V.  Ljde 

Wood  V.  M.  K.  and  T.  Railroad  C 

Woods  V.  Sawtellee 

Wooley  V.  Magie 

Worcester  v.  State  of  Georgia 

Wray  v.  Doe 

Wright  V.  Carpenter 

Wright  V.  Cradlebaugh 

Wright  V.  Da}'^ 

Wright  V.  Shumway 

Wright  V.  AVhitesides     . 

Wynn  v.  Garland 

Wythe  V.  Palmer  . 

Yeates  v.  Prvor 


81 


PAGE 
14 

0.  232 
702 
702 
171 
706 
769 
141 
402 
13 
685 
559 
769. 
169 
274 
314 
260 
13 
41 
170 
130 
332 
313 
447 
702 
550 
269 
9 
9 
269 
569 


LEADING    CASES 


ON 


Public  Land  Laws. 


Atherton  v.  Fowlek. 
October  Term,  1877.— Ci  Otto,  513. 

1.  No  right  of  pre-emption  can  be  established  by  a  settlement  and  im- 

provement on  a  tract  of  public  land  where  the  claimant  forcibly 
intruded  upon  the  possession  of  one  who  liad  already  settled  upon, 
improved,  and  enclosed  that  tract. 

2.  Such  au  intrusion,  though  made  under  pretence  of  pre-empting  the 

land,  is  but  a  naked,  unlawful  trespass,  and  cannot  initiate  a  right 
of  pre-emption. 

Errok  to  the  Supreme  Court  of  the  State  of  California. 
The  facts  are  stated  in  the  opinion  of  the  court. 
Mr.  Montgomery  Blair  for  the  plaintiff  in  error. 
Mr.  S.  F.  PhiUips  contra. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

This  case  originates  in  an  action  of  repleAdn  brought  by  Page, 
who  died  during  the  progress  of  the  litigation,  and  is  now  repre- 
sented by  Atherton.  his  executor,  the  plaintiff  in  error. 

The  plaintiff  below  obtained  possession  of  the  hay.  which  was 
the  subject  of  the  writ  of  replevin  ;  but.  on  trial  before  a  jury, 
they  found  he  was  not  entitled  to  the  possession,  and  judgment 
for  the  value  of  the  hay  was  rendered  against  him.  This  judg- 
ment was  affirmed  on  appeal  to  the  Supreme  Court  of  the  State, 
and  is  now  brought  before  us  for  review  on  questions  which  relate 
to  the  rights  acquired  in  the  soil  from  wliich  the  hay  was  cut,  or 
rather  which  might  have  been  acquired  to  such  soil  under  acts  of 
Congress. 

The  hay,  which  is  the  subject  of  controversy,  was  cut  in  the 


2  Atherton  v.  Fowler. 

summer  of  1863,  on  part  of  the  land  embraced  within  the  VallejO' 
grant  of  the  Soscol  raneli. 

The  history  of  tlie  title  to  that  ranch  is  given  in  the  report  of 
Frisbie  v.  Whitney,  9  Wall.,  187.  The  claim  of  Vallejo  to  the 
confirmatifm  of  the  grant  was  finally  decided  against  him  in  this 
court,  March  22,  1862.  By  virtue  of  the  thirteenth  section  of  the 
act  of  Congress  of  March  3.  1851  (9  Stat.,  633),  the  land  embraced 
within  his  claim  became  public  land  of  the  United  States  when- 
ever it  was  finally  decided  to  be  invalid.  No  public  survey  had 
been  extended  over  these  lands  at  that  time,  and  the  whole  of  the 
Soscol  ranch  was  held  in  possession,  and  had  been  for  years, 
under  the  Mexican  patent  to  Vallejo,  and  by  tenants  or  purchas- 
ers under  his  title. 

Nevertheless  a  large  number  of  persons  who  had  previously  no 
interest  in  or  claim  to,  or  possession  of  any  part  of  this  land, 
invaded  it  by  force,  tore  down  the  fences,  dispossessed  those  who 
occupied  it,  and  built  on  and  cultivated  parts  of  it,  under  pretence 
of  establishing  a  right  of  pre-emption  to  the  several  parts  which 
they  so  seized. 

The  general  character  of  this  movement  is  well  described  in 
Frisbie  v.  Whitney  supra. 

The  defendants  in  this  case,  though  taking  no  part  in  the  night 
invasion  mentioned  in  that  case,  did,  during  the  spring  and  sum- 
mer of  1862  and  1863,  enter  upon  the  lands  in  the  possession  of 
Page, — land  which  in  every  instance  was  enclosed  within  fences, 
and  which  was  in  actual  cultivation.  And  this  entry  was  without 
asking  the  consent,  or  having  in  any  way  the  permission,  of  those 
in  possession,  but  by  forcibly  driving  them  out.  The  hay,  which 
is  the  subject  of  the  controversy,  was  cut  from  meadows  or  grounds 
set  in  grass  by  Page. 

These  facts  are  stated,  or  evidence  from  which  the  jury  had  a 
right  to  infer  them,  in  a  case  made  by  the  parties,  on  which  the 
Supreme  Court  finally  decided  it. 

But  Congress,  on  the  3d  day  of  March,  1863,  enacted  that  all 
settlers  on  the  land  claiming  under  Vallejo  might  enter  the  land 
held  by  them  to  the  extent  of  their  actual  possession  at  $1.25  per 
acre,  and  have  a  patent  for  the  same  as  soon  as  the  surveys  were 
extended  over  the  ranch.  So  that  when  the  hay  in  controversy 
was  cut,  the  defendants  knew,  or  should  have  known,  that  they 
were  mere  trespassers  on  the  lands  of  Page,  and  had  no  right  to 
the  hay. 


Athbrton  v.  Fowler.  3 

It  is,  however,  to  be  considered  that  there  is  the  doctrine  that 
a  person  having;  the  legal  title  to  land,  bnt  out  of  yjossession, 
cannot  maintain  the  action  of  replevin  for  hay  or  timber  cut  on 
the  land.  This  general  doctrine  has  been  modified  both  by  stat- 
ute and  by  judicial  decision  in  the  several  States,  until  it  is  not 
easy  to  say  exactly  how  much  of  it  is  left  in  any  one  of  the 
States.  In  the  case  before  us,  the  court,  on  the  trial,  gave  the 
law  on  the  subject  very  clearly;  and,  as  it  is  a  doctrine  not 
affected  by  the  Constitution  or  laws  of  the  United  States,  we  must 
take  it  to  have  been  correctly  expounded  to  tlie  jury. 

The  court  instructed  them,  that  if  plaintiff  was  in  the  actual 
possession  of  the  land  when  the  defendants  entered,  there  was  no 
disseisin  ;  and  the  subsequent  possession  of  defendants  did  not 
oust  tliat  of  the  plaintitT.  unless  they  found  that  they  had  entered 
in  good  faith,  with  intent  to  pre-empt  the  land  on  which  the  hay 
was  cut,  and  that  they  had  the  actual  possession  of  it  at  the  time  the 
hay  was  cut.  To  the  last  part  of  this  instruction  plaintiff  excepted. 
The  court  also  said  :  '•  If  you  believe  from  the  evidence  that  the 
defendants  entered  in  good  faith,  with  intention  to  pre-empt  the 
land  on  which  the  hay  was  cut,  and  had  actual  possession  of  it  at 
the  time  the  haj^was  cut,  your  verdict  should  be  for  the  defend- 
ants." 

The  plaintiff  asked  the  court  to  charge  the  jury  that,  if  he  was 
in  the  actual  possession  of  the  land,  having  cultivated  it  for  sev- 
eral years  previously,  and  the  defendants  broke  through  his 
enclosure  against  his  consent,  the  entry  was  unlawful,  though  the 
land  might  be  public  land,  the  prior  right  of  pre-emption  belong- 
ing to  him  who  had  the  prior  and  continued  possession.  This  the 
court  refused. 

In  short,  it  is  obvious  that  the  case  was  made  by  the  court  to 
turn  on  the  assumption  that  the  laud  was,  in  its  then  condition, 
liable  to  be  pre-empted  by  defendants,  against  the  wishes  of 
plaintiff,  and  that,  to  effect  the  entry  and  cultivation  necessary  to 
establish  the  right  of  pre-emption,  the  defendants  could,  by  force 
and  violence,  and  by  breaking  into  an  actual  enclosure,  and  by 
turning  the  plaintiff  out,  acquire  such  right  of  pre-emption,  and 
at  the  same  time  a  bona  fide  possession. 

Unless  the  laws  of  the  United  States  justify  this  conduct,  the 
iustructions  of  the  court  were  erroneous,  and  to  the  {)rciudice  of 
tlie  plaintiff  in  a  matter  involving  his  rights  under  the  acts  of 
Congress. 


4  Atherton  v.  Fowler. 

At  the  time  this  action  was  tried,  Page  had  obtained  title  to  the 
land  under  the  act  of  March  3,  1865.  This  related  back  to  his 
possession  under  the  Vallejo  grant ;  and  the  title  in  this  action 
was  not  disputed.  It  was  simply  a  question  before  the  court  in 
that  trial,  therefore,  whether  the  intention  to  pre-empt  the  land 
■changed  what  would  otherwise  have  been  a  mere  trespass  into  a 
bona  fide  possession  which  would  defeat  the  present  action. 

Undoubtedly,  there  have  been  cases,  and  may  be  cases  again, 
where  two  persons  making  settlement  on  different  parts  of  the 
same  quarter-section  of  land  may  present  conflicting  claims  to  the 
right  of  pre-emption  of  the  whole  quarter-section,  and  neither  of 
them  be  a  trespasser  upon  the  possession  of  the  other,  for  the 
reason  that  the  quarter-section  is  open,  unenclosed,  and  neither 
party  interferes  with  the  actual  possession  of  the  other. 

In  such  cases,  the  settlement  of  the  later  of  the  two  may  be 
bona  fide,  for  many  reasons.  The  first  party  may  not  have  the 
qualifications  necessary  to  a  pre-emptor,  or  he  may  have  pre- 
empted other  land,  or  he  may  have  permitted  the  time  for  filing 
his  declaration  to  elapse,  in  which  case  the  statute  expressly 
declares  that  another  person  may  become  pre-emptor.  or  it  may 
not  be  known  that  the  settlements  are  on  the  sam^  quarter.  John- 
son V.  Toicslep.  IB  Wall.,  72;  sect.  15,  act  of  Sept.  4,  1841,  5 
Stat..  455. 

But  all  these  cases  suppose  that  the  parties  began  their  posses- 
sion and  made  their  settlements,  and  built  their  houses  on  lands 
not  in  the  actual  possession  of  another.  It  is  not  to  be  presumed 
that  Congress  intended,  in  the  remote  regions  where  these  settle- 
ments are  made,  to  invite  forcible  invasion  of  the  premises  of 
another,  in  order  to  confer  the  gratuitous  right  of  preference  of 
purchase  on  the  invaders.  In  the  parts  of  the  country  where  these 
pre-em])tions  are  usually  made,  the  protection  of  the  law  to  rights 
of  person  and  propertj'  is  generally  but  imperfect  under  the  best 
of  circumstances.  It  cannot,  therefore,  be  believed,  without  the 
strongest  evidence,  that  Congress  has  extended  a  standing  invita- 
tion to  the  strong,  the  daring,  and  the  unscrupulous,  to  dispossess 
by  force  the  weak  and  the  timid  from  actual  improvements  on  the 
public  land,  in  order  that  the  intentional  trespasser  may  secure 
by  these  means  the  preferred  right  to  buy  the  land  of  the  govern- 
ment when  it  comes  into  market. 

A  careful  examination  of  the  laws  concerning  the  survey  and 
sale  of  our  public  lands  will  show  that  nothing  of  this  kind  is 


Atherton  v.  Fowler.  5 

sanctioned,  and  that  so  man}'  other  ways  are  open  to  purchasers 
of  these  lands  that  no  such  proceeding;  is  necessary  to  enable  any 
one  to  secure  his  rights.  In  the  earliest  stages  of  our  land  system 
no  right  or  interest  could  be  secured  by  the  individual  in  any 
public  land  until  it  had  been  surveyed  into  legal  subdivisions ; 
nor  after  this  had  been  done  was  it  subject  to  sale,  until,  by  a 
proclamation  of  the  President,  it  was  brought  into  market.  This 
proclamation  always  fixed  a  time  and  place  when  the  lands  within 
a  given  district  were  to  be  offered  for  sale  at  public  auction  ;  and 
until  all  of  them  were  sold  which  could  be  sold  in  this  manner,  at 
prices  above  the  minimum  fixed  by  law,  no  one  could  make  a 
private  entry  of  a  particular  tract,  or  establish  a  claim  to  it.  The 
scenes  of  violence,  fraud  and  oppression,  and  the  combinations 
which  attended  these  sales,  and  the  wrongs  perpetrated  under 
them,  led  to  the  law  of  pre-emption.  It  often  occurred  that  emi- 
gration, in  advance  of  the  readiness  of  the  public  lands  for  these 
sales,  liad  caused  hundreds  and  thousands  to  settle  on  them  ;  and, 
when  they  came  to  be  sold  at  public  auction,  their  value,  enhanced 
by  the  houses,  fences,  and  other  improvements  of  the  settler,  placed 
them  bej'ond  his  reach,  and  they  fell  into  the  hands  of  heartless 
speculators.  To  remedy  this  state  of  things  the  pre-emption  system 
was  established.  This,  at  first,  was  only  applicable  to  lauds  which 
had  been  surveyed  ;  but  gradual^  this  was  changed,  until,  in  1862, 
pre-emptions  were  allowed,  under  proper  restrictions,  on  unsur- 
veyed  lands  as  well  as  those  surveyed.  Act  of  June  2,  1862,  12 
Stat..  418. 

It  may,  therefore,  be  said  that  at  the  time  the  transactions 
occurred  of  which  we  are  speaking  there  were  three  modes  of 
securing  title  to  public  land  :  1 .  By  purchase  at  the  public  land 
sales  ordered  bj^  the  President.  2.  By  private  entrj'- ;  that  is,  by 
going  to  the  land  officer  and  paying  at  the  rate  of  $1.25  or  $2.50 
per  acre  for  any  land  subject  to  private  entry  or  sale  at  those  rates 
respectively.     3.  By  pre-emption. 

Both  the  former  modes  contemplated  the  immediate  payment  of 
the  money,  and  the  right  of  the  party  to  the  land  was  fixed  when 
this  was  done.  He  had  then  a  vested  interest,  which  became  a 
perfect  legal  title  when  he  received  his  patent.  This  was  usually 
after  such  delay  as  was  necessary  to  ascertain  if  there  were  any 
conflicting  claims  or  rights  to  the  land. 

But  the  pre-emption  of  land  did  not  require  or  admit  of  payment 
at  the  time  the  right  of  pre-emption  was  exercised.     The  land 


6  Athbrton  v.  Fowler. 

might  not  have  been  surveyed,  and  then  it  could  not  be  identified 
or  described  so  as  to  cause  a  patent  to  issue  on  it.  The  law  also 
intended  to  give  the  settler  time  to  build  a  house,  lireak  up  the 
ground,  and  make  a  settlement  first  and  payment  afterwards. 

During  this  preliminary  period  he  had  no  vested  right  to  the 
land  ;  but,  as  we  have  elsewhere  decided,  he  did  thus  acquire  the 
right  of  preference  in  the  purchase  ;  that  is  to  say,  if  he  made  the 
necessary  settlement  and  improvement,  and  the  necessary  declara- 
tion in  writing,  no  other  person  could  buy  the  land  until  the 
period  elapsed  which  the  law  gave  him  to  pay  the  purchase- 
money.  Frisbie  v.  Whitney,  9  Wall.,  187  ;  Hutchings  v.  Loice,  15 
id.,  77. 

Among  the  things  which  the  law  required  of  a  pre-emptor,  and 
the  principal  things  required  of  him  to  secure  his  right,  were  : 

1.  To  make  a  settlement  on  the  land  in  person.  2.  To  inhabit 
and  improve  the  same.  3.  To  erect  a  dwelling-house  thereon. 
Sect.  2259,  Rev.  Stat. 

At  the  moment  the  land  on  which  the  hay  in  this  case  was  cut 
became  liable  to  pre-emption,  the  whole  of  it  was,  by  the  various 
persons  claiming  under  Vallejo.  1,  settled  on  by  them  in  person  ; 

2,  inhabited  and  improved  by  them  ;  and.  3,  it  had  dwellings  erected 
on  it  by  them. 

Unless  some  reason  is  shown,  not  found  in  this  record,  these 
were  the  persons  entitled  to  make  pre-emption,  and  no  one  else. 
But  suppose  they  were  not.  Does  the  policy,  of  the  pre-emp- 
tion law  authorise  a  stranger  to  thrust  these  men  out  of  their 
houses,  seize  their  improvements,  and  settle  exactly  where  they 
were  settled,  and  by  these  acts  acquire  the  initiatory  right  to  pre- 
emption ?  The  generosity  by  which  Congress  gave  the  settler  the 
right  of  pre-emption  was  not  intended  to  give  him  the  benefit  of 
another  man's  labor,  and  authorise  him  to  turn  that  man  and  his 
family  out  of  their  home.  It  did  not  propose  to  give  its  bounty 
to  settlements  obtained  by  violence  at  the  expense  of  others.  The 
right  to  make  a  settlement  was  to  be  exercised  on  unsettled  land — 
to  make  improvements  on  unimproved  land.  To  erect  a  dwelling- 
house  did  not  mean  to  sieze  some  other  man's  dwelling.  It  had 
reference  to  vacant  land,  to  unimproved  lands  ;  and  it  would  have 
shocked  the  moral  sense  of  the  men  who  passed  these  laws  if  they 
had  supposed  that  they  had  extended  an  invitation  to  the  pioneer 
population  to  acquire  inchoate  rights  to  the  public  lands  by  tres- 


Atherton  v.  Fowler.  7 

pass,  by  violence,  by  robbery,  by  acts  leading  to  homicides,  and 
other  crimes  of  less  moral  turpitude. 

We  have  not  been  able  to  find  any  decision  of  the  courts  direct Ij- 
in  point  on  this  question  ;  but  in  the  case  of  The  United  States  v. 
Stanley,  6  McLean,  409,  Mr.  Justice  McLean  gave  expression  to 
the  opinioii  that  where  a  man  was  engaged  in  erecting  a  house  in 
order  to  make  a  pre-emption  claim  to  lands  purchased  of  the 
Miami  Indians,  another  person,  who  by  force  turned  him  out  of 
the  house,  and  having  finished  it  took  up  his  residence  there, 
could  not  by  that  proceeding  acquire  a  valid  settlement,  unless 
the  other  party  voluntarily  withdrew  all  claim  to  the  property. 
The  case  in  regard  to  the  trespass  is  very  like  the  one  before  us, 
and,  though  the  validity  of  the  entr}^  of  the  trespasser  was  only 
remotely  in  question,  the  remark  of  the  learned  justice,  who  was 
familiar  with  the  laws  regulating  the  sales  of  public  lands,  is 
entitled  to  respect. 

So,  also,  in  the  case  of  Frisbie  v.  Whitney,  before  mentioned, 
this  court  said,  that  while  it  was  not  necessary  to  decide  it,  there 
were  serious  difficulties  in  regard  to  complainant's  right  to  make 
a  valid  pre-emi)tion  by  a  forcible  intrusion  upon  land  cultivated, 
enclosed,  and  peaceably  occupied  b}'-  another  man. 

In  the  present  case  we  are  met  with  that  question  directly  in 
our  way,  and  we  are  of  opinion  tliat  it  cannot  be  done. 

It  follows  that  the  defendants  could  not  have  made  any  lawful 
entry  on  the  lands  where  the  hay  was  cut  in  this  case  ;  that  no  law 
existed  which  gave  them  any  right  to  make  such  an  entry ;  that 
they  were  naked  trespassers,  making  an  unwarranted  intrusion 
upon  the  enclosure  of  another — an  enclosure  and  occupation  of 
years,  on  which  time  and  labor  and  money  had  been  expended — 
and  that  in  such  a  wrongful  attempt  to  seize  the  fruits  of  other 
men's  labor  there  could  be  no  ho nu  fide  claim  of  right  whatever. 
The  instruction  of  the  court  that  this  could  be  done,  founded  on 
an  erroneous  view  of  the  pre-emption  law,  was  itself  erroneous, 
and  the  judgment  founded  on  it  must  be  reversed. 

The  judgment  of  the  Supreme  Court  of  California  will,  there- 
fore, be  reversed,  and  the  case  remanded,  with  instructions  to 
order  a  new  trial,  and  for  further  proceedings  in  conformity  with 
this  opinion  ;  and  it  is  So  ordered. 

Mr.  Ciiikf  Justice  Waite,  with  whom  concurred  Mr.  Justice 
•Clifford,  dissenting. 


8  Atherton  v.  Fowler. 

I  dissent  from  this  judgment.  It  is  not  claimed  that  when  the 
defendants  entered.  Page  had  title  to  the  lands  on  which  the  hay 
was  cut.  After  the  judgment  oi"  this  court  in  United  States  v. 
Vallejo,  1  Black,  541,  against  the  validity  of  the  "Soscol"  grant, 
the  lands  became  public  lands  of  the  United  States  ;  and  the  occu- 
pancy of  Page  from  that  time,  covering  as  it  did  a  tract  of  more 
than  eight  hundred  acres,  did  not,  in  ray  opinion,  prevent  a  peace- 
able entry  by  the  defendants,  in  good  faith,  for  the  purposes  of 
pre-emption.    The  case  was  fairly  put  to  the  jury  upon  that  question. 


jfOTE. — This  act  withdrew  the  laud  from  the  operation  of  the  general 
pre-emption  law  to  the  extent  of  such  of  it  as  had  been  purchased  bona 
fide  from  Vallejo,  and  reduced  to  possession  prior  to  the  rejection  of  the 
claim.     Page  v.  Hobbs,  27  <  'al.,  484  ;  Huiton  v.  Frisbie,  37  Cal.,  47o. 

Possessory  rights,  or  "claims"  on  the  public  lauds  are  recognized  by 
the  laws  and  customs  of,  probably,  all  the  public  land  States  and  terri- 
tories ;  and  rights  are  protected,  and  contracts  made  in  relation  to  them 
are  enforced. 

The  foundation  of  all  such  rights  is  actual  possession,  and  upon  the 
abandonment  of  the  possession  the  right  or  claim  is  also  abandoned. 
Lonsdale  v.  Portland  City,  I  Deady,  1,  39. 

Xo  right  or  claim  can  be  obtained  to  land  resei'ved  from  sale,  upon 
which  a  valid  contract  can  be  based.    Diipas  v.  Wassell,  I  Dill  ,  213. 

Alabama.  • 

One  in  possession  of  public  land  is  a  tenant  at  will  of  the  United  States, 
and  may  maintain  an  action  of  forcible  entry  and  detainer  against  another 
who  enters  without  title .  McDonald  v.  G^ayto),  Miuor's  Rep.,  98  ;  Duncan 
v.  Potts,  5  Stew.  &  P.,  82. 

His  improvements  are  not  subject  to  execution  and  sale.  Bhea  v. 
Hughes,  1  Ala.,  219.  Such  impi^vements  constitute  part  of  the  realty  and 
pass  to  the  purcliaser  from  the  government,  and  should  such  purchaser, 
after  his  entry  of  the  land,  agree  to  pay  for  such  inlprovements,  such 
agreement  would  be  witliout  consideration  and  void.  Shaw  v.  Boyd,  1 
Stew.  &  P.,  83.  A  note  given  for  such  improvements  could  not  be  collec- 
ted.    Duncan  v.  Hall,  9  Ala.,  128. 

But  things  that  are  severed  from  the  land  at  the  time  of  the  purchase, 
such  as  rails  and  boards,  even  though  they  were  made  from  timber  cut 
off  the  land,  and  bricks  made  from  the  soil  of  the  land,  do  not  pass  to 
the  pvirchaser,  even  if  they  are  still  on  the  land  at  the  time  of  the  pur- 
chase.    Carpenter  V.  Lewis,  G  Ala.,  682. 

Arkansas. 

The  interest  that  persons  possess  in  an  improvement  upon  public  land 
a  possessory  right  or  interest  against  all  the  world  but  the  United; 


Atiierton  v.  Fowler.  9 

States,  and  tliis  is  secured  to  him  upon  the  principles  of  natural  justice. 
It  partakes,  in  some  degree,  of  the  nature  of  a  chattel  real— the  interest 
vests  in  tlie  persoiial  representatives,  and  may  be  sold  hy  them  without 
the  intervention  of  tlie  probate  court.  Pelhavi  v.  Wilson.  4  Eng.,  530, 
and  4  Arli  ,  '289.  I'lie  widow  has  no  dower  interest  in  the  land.  Critten- 
denv.   Woodnijf,  14  Ark.,  4(j5  ;   Criiteuden  y.  Johnson,  ] 4  Ark.,  447. 

A  sale  of  such  improvements,  while  the  land  belongs  to  the  United 
States,  is  a  sufficient  consideration  to  support  an  action.  Hnyhes  v. 
Sloan.  3  Eng.,  146  ;  Ferguson  v.  McCain,  '23  Ark.,  210  ;  Sherrer  v.  liuUock, 
23  Ark.,  729.  But  a  promise  made  by  the  purchaser  from  the  govern- 
ment, after  such  piu-chase.  to  pay  the  settler  for  improvements  made  prior 
to  the  entry,  is  witliout  consideration  and  void,  as  by  his  purchase  from 
the  government  he  acquired  tlie  right  to  all  improvements  on  the  land. 
McFarland  v.  Muthis.  5  Eng.,  5G0.  But  not  U)  wood  cut  on  tlie  land  before 
entry  ;  this  may  be  removed  after  the  entry  by  the  person  who  cut  it. 
Brock  V.  Smith,  1  Barb.,  431. 

The  purchaser  of  public  lands  is  entitled  to  all  improvements  and  grow- 
ing crops.  Gibbons  v.  Dillingham,  5  Eng.,  9  ;  Floi/d  v.  h'icks,  1  Barb., 
286  ;    Wynn  v.  Garland,  3  Barb.,  4J0  ;   Graham  v.  Roark,  23  Ark.,  19. 

California. 

The  right  to  occupy  public  land  is  vested  in  the  first  possessor.  Coijell 
V.  Cain,  16  Cal.,  5fi7.  Possession  carries  with  it  the  privileges  and  inci- 
dents of  ownership.  Crandall  v.  Woods,  8  Cal.,  136,  and  the  right  of 
undisturbed  enjoyment  of  the  land  against  all  the  world  except  the 
United  States.  Tartar  v.  Spring  Creek  Mining  Co.,  5  Cal.,  395.  One  in 
possession  under  a  judgment  of  a  court  is  presumed  to  be  rightfully  in 
possession  until  some  otlier  .show  a  riglit  of  possession  derived  from 
the  United  States,     Bich  v.  Ma^jles,  33  Cal..  102. 

A  person  may  hold  any  amount  of  public  land  he  has  enclosed.  Dyson 
V.  Bradshaw,  23  Cal,,  528.  But  not  against  one  who  enters  upon  160 
acres  of  it  to  acquire  title  by  pre-emption.  Townsend  v.  Little,  4o 
Cal.,  673. 

One  claiming  the  right  to  hold  possession  of  land  .against  a  prior 
possessor  upon  the  grounds  that  he  held  as  a  pre-emptor,  must  show- 
that  he  has  all  the  qualifications  of  a  pre-emptor.  Page  v.  Hobbs,  27 
Cal.,  484. 

An  entry  on  public  land  gives  only  the  right  of  possession  to  that 
part  actually  occupied  or  enclosed.  Wright  v.  Whitesides,  15  Cal.,  46. 
Occupying  part  of  a  quarter-section  and  cutting  hay  off  another  part 
of  it  does  not  give  .possession  of  the  whole  quarter-section.  Garrison 
V.  Sampson,  15  Cal ,  93. 

Commencing  to  build  a  fence  to  enclose  the  land  does  not  give  a 
preferred  right  of  possession.  Cnmmings  v.  Scott,  20  Cal.,  83.  But 
commencing  to  build  a  house  on  the  land  does.  Stark  v.  Barnes,  4 
Cal.,  412. 

Prior  possession  of  public  land  will  entitle  the  possessor  to    main- 


10  Atherton  v.  Foavler. 

tain  an  action  against  a  trespasser  upon  the  land.  Grover  v.  Hawley^ 
5  C'al.,  485;  Bnidshaw  v.  Treat,  G  Cal.,  172;  Conger  v.  Weaver,  (i  Cal., 
548  ;  Bird  v.  Denni.soii,  7  Cal.,  297.  All  such  possessory  rights  are 
subject  to  the  rights  of  miners.  McClintock  v.  Bryden,  .5  Cal.,  97  ; 
Burdge  v.  Underwood,  G  Cal.,  45  ;   Weimer  v.  Lowery,  11  Cal.,  104. 

If  a  settler  lay  out  a  town  on  the  land  settled  upon  he  may  main- 
tain an  action  of  ejectment  against  one  who  intrudes  on  any  part  of 
it.      Plume  V.  Sicwa)-d,  4  Cal.,  94. 

A  settler,  even  if  he  settled  with  the  intention  of  pre-empting  the 
land,  may  mortgage  the  land,  and  it  may  be  sold  under  execution, 
(  WJiitney  v.  Buckman,  13  Cal.,  536,)  even  after  he  has  filed  his  pre- 
emption claim.     Montgomery  v.  Whitney,  40  Cal.,  294. 

A  sale  of  a  possessory  right  is  a  valid  consideration  for  a  note  given 
for  the  purchase.     Tartar  v.  Hall,  3  Cal.,  263. 

If  one  in  possession  executes  a  mortgage  and  then  sells,  and  his 
grantee  pre-empts  the  land,  the  mortgage  cannot  be  foreclosed,  for  the 
pre-emptor  holds  title  under  his  pre-emption  entry  and  not  under  his 
grantor's  possessory  right.  Bull  v.  Shaw,  48  Cal.,  455.  Also  if  land  is 
sold  under  execution  and  the  purchaser  put  in  possession,  the  original 
possessor  may  settle  on  another  part  of  the  quarter-section  and  pre-empt 
the  whole  quarter-section.  Montgomery  v.  Whitney,  40  Cal.,  294.  Also 
after  he  sells  by  quit  claim  deed  he  may  pre-empt  the  land,  and  after  he 
has  made  proof  and  payment,  he  can  hold  against  his  grantee.  McDon- 
ald V.  Edmonds,  44  Cal.,  328. 

If  a  settler  mortgage  the  land,  the  mortgage  is  flot  defeated  by  the 
mortgagor  filing  a  pre-emption  claim.  Hemphill  v.  Davies,  38  Cal., 
577. 

If  a  settler  sells  by  deed,  and  his  assignee  sells  again  by  parol,  and 
the  purchaser  takes  possession,  the  holder  by  deed  can  recover  posses- 
sion, although  the  possessor  has  held  possession  under  the  parol  pur- 
chase for  two  years,  and  has  put  valuable  improvements  on  the  land. 
Stephen,^  v.  Mansfield,  11  Cal.,  363. 

If  a  settler  gives  possession  to  one  under  an  agreement  to  purchase, 
and  such  person  files  a  homestead  claim  on  the  land,  the  prior  occu- 
pant cannot  recover  possession.  Holdenv.  Andrews,  38  Cal.,  119.  lUit  if 
the  seller  takes  a  vendor's  lien  on  the  land,  it  cannot  be  defeated  by  such 
homestead  entry.     Kelly  v'  Mack,  49  Cal.,  523. 

The  sale  of  a  settler's  right,  imder  execution,  may  be  defeated  by 
the  settler  entering  the  land  as  a  homestead,  but  he  must  pay  rent  to 
the  purchaser  under  the  execution  from  the  date  of  sale  to  the  date 
of  the  entry,     Emersonx.  Savsome,  41  Cal.,  552. 

A  settler  is  entitled  to  pay  for  damages  to  his  improvements  on 
public  land,  caused  by  a  railroad  passing  through  his  lands,  although 
such  railroad  company  has  a  grant  from  the  United  States  of  the  right 
of  way  over  the  public  land  Northern  E.  R.  Co.  v.  Gould,  21  Cal.,  254. 
{Contra,  see  Central  Pacific  P.  P.  Co.  v.  Dyer,  Sawyer,  641.) 

All  possessory  rights  cease  as  soon  as  the  land  is  sold  by  the  United 


Atherton  v.  Fowler.  11 

States,  unci  tlie  improvements  attached  to  the  soil  pass  to  the  pur- 
chaser from  the  government,  and  the  act  of  the  legislature  of  March  30, 
1868,  is  void  so  far  as  it  authorizes  the  remoA'al  of  such  improvements 
after  the  land  has  been  sold  by  the  United  States.  Pennyheckerx.  McDon- 
gal,  48  Cal.,  IGO.  But  improvements  not  attached  to  the  soil  may  be 
removed.     Collins  \.  Barileii,  44  Cal.,  371. 

Colorado. 

Title  l)y  occupancy  of  public  land,  subject  to  entry  under  tlie  town 
site  act,  is,  by  the  laws  of  this  Territory,  real  estate,  and  descends  to 
the  heirs  at  law.     Gilleit  v.  Cajfney,  3  Colo.,  351 . 

Florida. 

A  sale  of  improvements  on  public  land,  by  a  pre-emptor,  is  a  valid 
consideration  for  a  note  given  for  the  paj^ment.  Taylor  v.  Baker,  1 
Fla.,  245. 

Idaho  Territory. 

A  settler  on  public  lands  may  maintain  an  action  of  ejectment 
against  one  who  intrudes  upon  his  possession.  Fierhauyh  v.  Materson,  1 
Idaho  Ter.,  153. 

Illinois. 

The  possession  of  public  land  is  made  property  bj'  a  statute  of  the 
Statf       <ivitzer  v.  Skiles,  3  Gil.,  5'29. 

If  the  land  be  unsurveyed,  the  lines  of  the  claim  must  be  plainly 
marked,  {Sargent  v.  Kellogg,  5  Gil.,  273,)  and  the  possession  must  be 
actual.  Gleason  v.  Edmonds,  2  Scam.,  448;  Wldtaker  v.  Gaidier,  3  Gil., 
443. 

The  occupant  may  maintain  an  action  of  ejectment  against  any 
intruder.  Wehh  v.  SUirievant,  1  Scam.,  18].  He  may  legally  sell  his 
possession  and  improvements.  Bradshno  v.  Newman,  Breese  Kep.,  94; 
Carson  V.  Clark,  \  Scam,  113;  Doyle  \.  Knapp,  'S  Scam.,  334. 

His  possession  and  improvements  may  be  sold  to  enforce  a  mechanic's 
lien  {Tnrney  v.  Saunders,  4  Scam.,  527) ;  and  they  pass  as  assets  to  an 
assignee  in  bankruptcy.     French  v.  Carr,  2  Gil.,  664. 

Upon  the  land  being  sold  by  the  governmeijt,  all  possessory  rights 
cease.  Switzer  v.  Skiles,  3  Gil.,  529.  All  improvements  on  the  land  pass 
with  the  land  to  the  purchaser.  Attridge  v.  Billings,  57  111.,  487  ;  Cook  v. 
Foster,  2  Gil.,  G52.  But  all  movables,  such  as  rails  and  lumber,  although 
cut  ofl"  the  land  previous  to  the  entrj^  do  not  belong  to  the  purchaser 
from  tlie  government.     Blair  v.  Warley,  1  Scam.,  178. 

Indiana. 

The  purchaser  of  public  land  is  entitled  to  all  improvements  on  the 
land,  even  if  they  were  placed  on  tlie  land  by  an  adjoining  owner  by 
mistake  {Srymmtr  \.  yVulson,^)  Blaekf.,  5.")5).  and  all  growing  crops.  Basor 
v.  Qiiaills,  4  Blaekf.,  2SG. 

An  agi-eement  by  such   purchaser,    made   after  purchase,    to   paj'  a 


12  Atherton  r.  Fowler. 

squatter  for  iniprovcuK'nts  on  the  land  at  the  date  of  the  purchase,  is 
witliont  consideration  and  void.  Boston  v.  Dodge,  1  Blackf.,  19  ;  Carr 
V.  AUnioii,  i)  Blackf  .  03.  But  money  paid  for  such  improvements  cannot 
be  recovered  back.      Vest  v.  Wiei\  i  Blackf.,  13o. 

Iowa. 

Claims  on  the  public  land  are  property,  and  agreements  relating  to 
them  are  legal  and  ))inding.     EUi.s  v.  Master,  2  Green,  246. 

']'o  constitute  a  claim,  the  boundaries  must  be  plainly  marked.  Jones 
v.  Donalioo,  Morr.  Rep.,  493. 

Claims  may  be  legally  sold  as  property  {Hill  v.  Smith,  Morr.  Rep..  70), 
and  the  law  implies  a  warranty  of  title  to  the  claim.  Should  the  claim 
fail,  the  money  paid  may  be  recovered  back.     Boxoman  v   Torr,  3  Iowa,  -571 . 

An  action  of  ejectment  may  be  maintained  against  an  intruder.  Lori- 
mery.  Lewis,  Morr.  Rep.,  2.53. 

Such  possessory  rights  are  personal  property  (Boumum  v.  Torr,  3  Iowa, 
571),  and  go  to  the  administrator  upon  the  death  of  the  occupant.  Steic- 
art  V.  Chadwick,  8  Iowa,  463. 

The  moment  the  land  is  sold  by  the  United  States,  the  possessory  right 
or  "claim"  ceases.     Hamilton  v.  Walters,  S  Green,  5oG. 

The  purchaser  of  public  lands  takes  all  improvements  on  the  land. 
Bmierson  v.  Teeple,  2  Green,  .542.  But  loose  rails,  not  put  up,  do  not  pass 
with  the  land  to  the  purchaser.     Robertson  v.  Phillips,  3  Green,  220. 

.Kansas. 

A  settler  on  public  land  has  the  right  of  possession  against  every  one 
except  the  United  States.     Jordan  v.  Updecjraff,  McCahonRep.,  103. 

Buildings  and  town  lots  on  the  public  land  may  be  levied  upon  and 
sold  under  execution.     Feesler  v.  Haas,  19  Kan.,  216. 

A  note  given  for  improvements  and  possession  of  public  land  can  be 
collected.  Bell  v.  Parks,  18  Kan.,  1.52.  But  if  the  Indian  title  had  not 
been  extinguished,  such  settlement  and  improvement  was  prohibited,  and 
therefore,  could  not  be  the  basis  of  a  valid  contract.  Stone  v.  Young,  4 
Kan.,  17;  Vidcroy  v.  Pratt,  7  Kan.,  238. 

Louisiana. 

A  settler  on  public  lands  will  be  protected  in  his  possession  to  the 
-extent  of  his  enclosure  {Miller  v.  Lelev,  19  La.,  331  ;  (Jriffin  v.  Cotton,  1 
Rob.,  142.,  and  the  pre-emption  act  of  1841,  does  not  authorize  a  person 
to  enter  on  land  in  the  possession  of  another  for  the  puipose  of  acquiring 
a  pre-emption  right  to  the  land.  Bonis  v.  James,  7  Rob.,  149.  But  posses- 
sion, however  protracted,  will  not  confer  a  title  or  right  of  possession  as 
against  the  grantee  of  the  United  States.     Pepper  v.  Dunlap,  9  Rob.,  283. 

A  settler  having  a  right  of  pre-emption  may  legally  sell  his  possession 
and  improvements.  Ratdiff  v.  Bridger,  1  Rob.,  57  ;  Bryan,  v.  Glass,  6 
La.,  740.     He  may  also  sell  if  he  is  in  a  situation  to  avail  himself  of  a 


Atherton  v.  Fowlkk.  13 

pre-emption  right  (Dean  v.  Wade,  15  La.  Ann.,  230,)  and  in  the  absence 
of  evidence  as  to  this,  the  court  will  presume  that  the  settler  had  a  pre- 
emption ri<?ht.  Pri,:^  v.  Cnrnai,  .")  La.  Ann..  08G  ;  Norman  v.  Ellis.  "> 
La.  Ann.,  (>9;{. 

If  a  sale  is  made  under  a  mutual  mistake,  both  the  settler  and  the 
purchaser  supposing-  that  the  land  could  he  entered  bj'  the  purchaser, 
while  in  fact  the  land  wa«  reserved  from  sale,  the  sale  is  void  on 
account  of  tiie  mutual  mistake.  Theroit  v.  C/iandoir.  17  La.,  44.').  Also, 
if  the  settler  is  not  in  a  situation  to  avail  himself  of  a  pre-emption,  he 
being  a  trespasser  upon  the  public  land,  his  possession  and  im])rovements 
cannot  form  the  subject  of  a  valid  contract.  Speiliu  v.  Miliikeiu  !«  La. 
Ann.,  217. 

The  improvements  of  the  settler  are  personal  property,  not  real  estate. 
Broussard  v,  Dugas,  5  La.  Ann.,  585. 

The  purchaser  of  public  land  takes  all  improvements  on  the  land. 
Uarriot  v.  Broussard.  4  Mart.  N.  S.,  260;  Wood  v.  Lyh',  4  La.  Ann  , 
145;  Jtnkins  v.  Gibson,  3  La.  Ann.,  203;  liellon  v.  -bV/;>p,  4  La.  Ann., 
519;  Jane's  v.  Whedis,  4  La.  Ann.,  54L  It  is  held  otherwise  if  the 
improvements  belong  to  a  settler  claiming  the  right  of  pre-emption, 
{Williams  v.  Boker.  12  Rob.,  253;  Gibson  v.  Hntchings,  12  La.  Ann.,  545,) 
or  one  who  has  settled  on  the  land  in  good  faith  believing  he  had  a  good 
title  to  the  land.     Fearce  v.  Fruntw/i,  10  La.,  414. 

Minnesota. 

The  relinquishment  of  a  homestead  ])y  a  settler  is  a  sufficient  consid- 
eration for  a  note  given  l>y  one  who  desired  to  enter  the  land.  Linder- 
smiih  V.  Schwiso,  17  Minn.,  2G. 

A  contract  to  sell  a  lot  in  a  town  site  on  public  land  before  the  land 
is  entered,  is  valid.  Transferring  possession  is  sufficient  consideration 
to  support  the  conti-act.      Maxfield  v.  Bierbauer.S  Minn  ,  413. 

Mississippi. 

The  purchaser  of  public  lands  is  entitled  to  all  the  improvements  on 
the  land  at  the  time  of  entry.     Welborn  v.  Spears,  32  Miss.,  138. 

A  note  given  for  improvements  on  public  land  to  one  not  having  a 
preference  right  of  entry  is  without  consideration  and  void.  Merrill  v. 
LegraJid,  1  How..  150;   Lindsei/  v.  Sellers,  26  Miss.,  169. 

Missouri. 

Possession  of  public  land  does  not  extend  beyond  tliat  enclosed.  Sloan 
V.  Moore.  7  Mo..  170  ;  Ehj  v.  Ellington.  7  Mo.,  302. 

A  sale  of  improvements  on  public  land  is  valid  [Siubblejield  v-  Branson, 
20  Mo.,  301.)  and  such  improvements  being  personal  property,  maybe  sold 
by  paril.     Clark  v.  Schul/z.  4  Mo.,  235. 

They  cannot  be  levied  upon  and  sold  under  execution.  Hatfield  v. 
Wallace,  7  Mo  ,  112. 

The  purchaser  of  public  land  takes  by  his  purcliase  all  improvements 
on  the  land,  and  a  contract  by  such  purchaser  to  pay  for  improvements 


14  Atherton  v.  Fowler. 

put  on  the  land  before  his  entry,  is  without  consideration  and  void.  Burns 
V.  Hi/deii,  24  Mo.,  21.5  ;  Welch  v.  Brijau,  28  Mo.,  30.  But  if  such  improve- 
ments were  put  on  the  land  under  an  entry  tliat  was  afterward.s  canceled, 
compensation  may  be  allowed.     Russell  v.  Def ranee.  3i)  Mo.,  506. 

The  purchaser  from  the  government  is  not  entitled  to  wood  cut  and 
left  on  tlie  land  before  his  entry  {Keeton  v.  Andsley,  19  Mo..  3(52,)  and  if 
he  appropriate  such  wood  he  is  liable  for  its  value,  to  the  person  wlio  cut 
it.     James  v.  Snelsoii,  3  Mo.,  393  ;   Contra,  Tnrley  v.  Tucker,  6  Mo.,  583. 

He  is  entitled  to  all  growing  crops  {Boyer  v.  Williams,  5  xMo  ,  335) ; 
and  he  may  maintain  an  action  against  one  who  removes  a  fence  from 
the  land,  although  it  was  placed  there  while  the  land  belonged  to  the 
government.     Gale  v.  Davis,  7  Mo.,  544. 

Nevada. 

Under  the  State  statute  a  person  can  hold  possession  of  public  land  by 
filing  a  notice  in  the  county  court,  as  directed  by  the  statute,  without 
actual  residence  on  the  land.  Desmont  \.  Stone,  1  Nev.,  378.  If  such 
notice  is  not  filed  actual  possession  is  required.  Sankey  v.  Noyes,  1  Nev., 
68.  But  timber  land  may  be  held  by  marking  the  lines  of  the  land 
claimed.     McFarland  v.  Culbertson,  2  Nev..  280. 

The  purchaser  of  public  land  is  entitled  to  all  improvements  on  ftie 
land,  and  he  may  maintain  an  action  against  one  who  had  a  steam  mill 
on  the  land  when  he  purchased  from  the  government,  for  removing  it 
after  his  entry.     Treadway  v.  Sharon,  7  Nev.,  37. 

One  claiming  the  rigiit  of  possession  of  public  land,  as  against  a  prior 
occupant,  by  reason  of  a  pre-emption  right,  must  allege  and  prove  he 
has  all  the  qualifications  to  entitle  him  to  a  pre-emption.  McFarland 
V.  Culbertson,  2  Nev.,  280. 

A  quit-claim  deed  made  by  a  settler  on  unsurveyed  land,  will  not 
convey  the  title  afterwards  acquired  by  virtue  of  a  pre-emption  entry  and 
patent.     Hardin  v.  Cullins,  8  Nev.,  84. 

Oregon. 

Tlie  courts  will  protect  settlers  on  public  land  in  their  peaceable  posses- 
sion. WoodsidesY.  Rickey,  1  Oreg.,  108.  But  will  not  review  the  decisions 
of  the  land  department  as  to  the  right  of  possession,  where  neither  party 
has  obtained  title  from  the  government  (Pin  v.  Morris,  1  Oreg.,  230,)  or 
while  contests  are  pending  between  the  parties,  before  the  land  depart- 
ment.    Moore  v.  Fields,  1  Oreg.,  317. 


LiNDSEY   V.  HaWES.  1 ''^ 

Jajiks  a.  LixDSEY  AND  Othkks,  Appellants,  v.   IIaavks. 

December  Term,  1SG2.-2  Black,  554;  4  Miller,  820. 

Action  of  Land  Officer  in  issuing  Patent  may  he  Reviewed  in  Equity— Pre- 
emption— Residence  on  Boundary  Line. 

1.  On  a  re-examination  of  the  adjudged  cases,  tliis  court  holds  that,  when 

a  pre-emptor  has  proved  his  claim,  paid  his  money,  and  received  a 
certificate  of  entry  from  tlie  proper  land  officer,  tlie  action  of  the 
commissioner  of  tlie  land  office  in  setting  aside  his  entry,  without 
notice  to  him  or  his  heirs,  and  selling  and  giving  a  patent  for  it 
to  another,  does  not  preclude  the  party  first  mentioned  from  assert- 
ing his  rights  in  a  court  of  equity. 

2.  When  the  government  lias  made  a  survey  of  its  lands,  with  a  plat 

which  has  been  approved  by  the  proper  officer,  and  by  that  survey 
has  sold  the  land  and  received  the  money  for  it,  and  given  a  certifi- 
cate of  purchase,  it  is  bound  by  the  survey  and  sale,  and  cannot 
of  its  own  motion  make  a  new  survey,  so  as  to  defeat  the  title  it 
had  sold,  by  showing  that  the  pre-emptor  did  not  occupy  the  specific 
congressional  subdivision  which  he  Jiad  rightfully  claimed  to  do  by 
the  first  survey. 

3.  But  this  is  not  intended  to  deny  the  right  of  the  government  to  compel 

payment  for  any  additional  quantity  of  land  found  to  be  included 
in  the  sale  by  the  new  survey. 

4.  Taking  the  original  survey  as  furnishing  the  lines  by  which  plaintiflF's 

occupation  and  residence  on  the  land  he  claimed  is  determined,  it  is 
established  as  a  fact  that  his  house  was  on  the  dividing  line  between 
two  quarter-sections,  one  of  which  he  pre-empted.  This  was  a 
residence  in  both,  and  authorised  him  to  select  in  which  he  would 
claim  the  right  of  entry,  as  he  had  possession  of  both. 

5.  The  plaintiffs,  the  heirs  of  the  pre-emptor,  are  therefore  entitled  to 

conveyance  of  the  legal  title  from  the  defendants,  who  hold  the  legal 
title  by  patent  from  the  United  States,  which  equitably  belongs  to 
plaintitts- 

Appeal  from  the  Circuit  Court  for  the  Northern  District  of 
Illinois. 

The  case  is  fully  stated  in  the  opinion. 

Mr.  Grant  for  appellants  ;  Mr.  Scutes  for  appellees. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

This  is  an  appeal  from  a  decree  of  the  Circuit  Court  for  the 
Northern  District  of  Illinois,  in  which  the  appellants  here  were 
claimants  there. 

The  subject  of  the  litigation  is  the  legal  title  to  the  southwest 
part  of  the  northeast  fractional  quarter  of  section  No.  36,  in  town- 


16  LiNDSEY    V.  HaWES. 

sbi))  No.  18,  of  range  No.  2,  west  of  the  fourth  principal  meridian, 
in  the  county  of  Rock  Island,  Illinois.  The  course  of'  the  Missis- 
sippi river  at  this  point  is  almost  due  west,  and  that  portion  of 
its  waters  which  flows  south  of  the  island  of  Rock  Island  divides 
the  northeast  quarter  of  section  So  into  two  parts,  one  of  which, 
the  smaller,  is  south  of  the  stream,  and  the  other  constitutes  a 
portion  of  the  island. 

The  section  was  surveyed  in  the  year  1833  by  Bennett,  the 
government  surveyor,  and  the  survey  duly  filed  in  the  proper 
office.  The  meanders  of  the  Mississippi  river,  the  quarter-section 
posts,  and  the  area  of  the  fractional  quarters,  were  all  given  by 
the  survey.  It  appeared  by  it  that  the  south  line  of  the  quarter- 
section  impinged  upon  the  river  at  a  point  near  the  centre  of  the 
line,  and  thus  divided  that  part  of  the  quarter  which  was  south  of 
the  river  into  two  separate  fractions.  The  computation  of  this 
survey  gave  the  contents  of  the  east  fraction  at  1.H7  acres,  and  of 
the  west  fraction  at  5.17  acres.  It  is  tliis  latter  parcel  which  is 
in  contest.  In  April,  1839,  Thomas  Lindsey  made  application  to 
the  receiver  and  register  of  the  land  office  at  Galena  to  purchase 
the  land,  claiming  a  right  of  pre-emption  under  the  act  of  1838  by 
reason  of  cultivation  and  actual  residence  thereon,  and  having 
establislied  his  claim  to  the  satisfaction  of  those  officers,  he 
received  from  them  on  the  3d  day  of  June,  183!),  the  proper  certifi- 
cate stating  the  receipt  of  the  purchase-money,  and  that,  on  its  pre- 
sentation to  the  Commissioner  of  the  General  Land  Office  he  would 
be  entitled  to  a  patent.  Shortly  after  receiving  this  certificate, 
Thomas  Lindsey  removed  with  his  family  across  the  river  into 
Iowa,  and  died  on  the  14th  of  September  of  the  same  year,  a  little 
more  than  three  months  after  its  date.  The  present  plaintiffs  are 
his  heirs,  and  were  all,  at  the  time  of  liis  deatli,  either  minors  or 
femes  covert,  except  James  A.  Lindsey.  No  patent  ever  issued 
to  Thomas  Lindsey  or  his  heirs  on  this  entry. 

In  1845  David  Hawes  claimed  a  pre-emption  right  under  the 
act  of  1841  for  the  same  fractional  southwest  part  of  the  north- 
east quarter  of  section  36  and  in  December  received  the  cei'tifi- 
cate  of  tlie  register  and  receive  that  he  had  pui'chased  and  entered 
it,  and  March  1,  1848,  received  fron'  the  government  a  patent. 

The  object  of  the  ])resent  suit  is  to  compel  from  said  David 
Hawes  and  the  other  defendants,  who  are  lis  grantees,  a  convey- 
ance to  tlie  plaintiffs  of  the  legal  title  thus  obtained  by  Hawes 
from  the  government. 


LiNDSEY   V.  HaWBS.  17 

As  Hawes  took  his  patent  from  the  United  States  with  full 
knowledge  of  the  certificate  previously  issued  to  Lindsey,  it  is 
quite  clear  that  upon  the  facts  above  stated,  withont  more,  the 
complainants  would  be  entitled  to  the  relief  pra3^ed  for  in  their 
bill.  But  the  defendant  Hawes,  who  alone  has  answered,  set  up 
other  facts  ujjon  which  he  relies  as  a  full  defence  to  the  claim  of 
the  plaintiffs.  There  are  in  the  record  the  depositions  of  some 
forty  witnesses,  besides  letters  and  other  documentary  evidence, 
all  of  which  have  received  the  careful  attention  of  the  court ; 
although  it  will  be  found  that  the  case  must  be  decided  upon  a 
few  facts,  about  the  truth  of  which  there  is  but  little  conflict. 
These  will  be  considered  as  we  progress. 

On  the  9tli  August.  1845,  James  Shields,  Commissioner  of 
the  Land  Office,  set  aside  the  entr}^  of  Lindsey,  ordered  his  certifi- 
cate to  be  canceled,  and  directed  the  register  and  receiver  to 
hear  proof  of  the  right  of  David  Hawes  and  to  adjudicate  his 
claim. 

They  accordingly  heard  his  proof,  and  gave  him  the  certificate, 
on  which  he  afterwards  obtained  his  patent  as  before  recited.  It 
is  claimed  by  the  counsel  of  Hawes  that  this  action  of  the  land 
officers,  including  that  of  the  commissioner,  was  a  conclusive  and 
final  adjudication  of  the  matters  now  set  up  in  the  plaintiffs'  bill, 
and  that  the  courts  of  law  cannot  go  behind  these  proceedings  to 
correct  any  injustice  which  may  have  been  done  to  plaintiffs. 
The  proposition  as  thus  broadly  stated,  and  as  necessarily  so 
stated  by  defendant's  counsel  to  avail  him  in  this  case,  cannot  be 
conceded.  It  appears  from  the  evidence  before  us,  that  the 
ground  on  which  the  commissioner  set  aside  the  entry  of  Lindsej^ 
was  that  there  had  been  a  mistake  in  the  survey  made  by  Bennett 
in  1833,  and  that  by  another  survey  made  by  order  of  the  commis- 
sioners in  1844.  it  was  ascertained  that  the  house  in  which  Lind- 
sey resided  when  he  made  his  claim  in  183t).  was  not  on  the  land 
for  which  he  received  his  certificate  of  entry  from  the  receiver  and 
register. 

The  order  for  this  new  sur%'ey  emanated  from  the  Commissioner 
of  the  Land  Office.  June  1.  1844,  and  the  survey  "was  actually 
made  in  the  autumn  of  that  year,  five  years  after  Lindsey' s  entry, 
and  five  years  also  after  his  death,  and  there  is  no  proof  what- 
ever that  any  of  his  heirs  had  notice  of  this  surv^ey.  or  of  any 
intention  on  the  part  of  the  commissioner  to  set  aside  Lindsey' s 
entry ;  but  the  whole  proceeding  was  ex  parte.     It  is  true  that 

2 


18  LiNDSEY   V.  HaWES. 

subsequently,  when  the  claim  of  David  Hawes  to  a  right  to  enter 
this  land  came  before  the  register  and  receiver,  James  A.  Lindsey 
seems  to  have  had  some  kind  of  notice  ;  but  this  was  given  him 
in  regard  to  an  attempt  on  his  part  to  enter  this  land  for  himself, 
on  a  claim  of  improvement  made  by  himself,  having,  as  is  clearly 
shown,  no  relation  whatever  to  the  right  established  by  his  father, 
Thomas  Lindsey.  Nor  did  the  other  heirs  of  Thomas  Lindsey 
have  any  notice  of  the  proceedings  by  which  David  Ilawes  estab- 
lished his  claim  before  the  register  and  receiver.  These  heirs 
were  not  in  any  sense  parties  to  any  of  the  proceedings  by  which 
the  title  to  the  land  which  their  ancestor  had  bought  of  the  gov- 
ernment was  vested  in  David  Hawes,  and  their  claim  was  annulled. 
Under  these  circumstances  we  have  no  hesitation  in  holding 
that  the  action  of  the  officers  of  the  land  office  was  not  conclusive 
upon  their  rights,  and  that  a  court  of  equity  may  enquire  into  the 
proceedings  by  which  the  title  was  vested  in  Hawes,  and  aiford 
relief  if  a  proper  cause  for  it  is  shown  to  exist.  That  this  is  the 
settled  doctrine  of  this  court,  a  reference  to  a  few  of  its  decisions 
will  show. 

In  the  case  of  Cunningham  v.  Ashley  et  al.,  14  Howard,  377, 
Cunningham    appeared    before    the   receiver    and    register,    and 
claimed  the  right,  under  the  pr§-emption  laws,  to  enter  the  land 
which  was  the  subject  of  controversy.     These  officers  decided  that 
he  had  no  right  to  do  so,  and  rejected  his  claim.     He  again  and 
repeatedly  presented  his  claim,  and  tendered  the  price  of  the  land. 
His   claim   received   the    consideration  of  the   Commissioner  of 
the  Land  Office,  of  the  Attorney  General,  and  of  the  Secretary  of 
the  Treasury,  and  was  finally  rejected.     The  defendants  were  per- 
mitted to  enter  the  land,  and  receive  from  the  government  patents 
for  it.     Justice  McLean,  in  delivering  the  opinion  of  the  court, 
says  that  this  final  decision  of  the  officers  of  the  department  was 
the  result  of  twenty  years  of  controversy  ;  and,  speaking  in  refer- 
ence to  the  plaintiff's  rights,  he  says  :  "  They  were  paramount  to 
those  acquired  under  the  new  location.     Those  rights  were  founded 
on  the  settlement  and  improvement  in  1821,  and  on  the  acts  done 
subsequently  in  the  prosecution  of  his  claim.     Having  done  every- 
thing which  was  in  his  power  to  do,  the  law  requires  nothing 
more."     Again  :  "  So  far  as  the  new  entries  interfered  with  the 
right  of  complainants,  they  were  void."     "The  officers  of  the 
government  are  the  agents  of  the  law.     They  cannot  act  beyond 
its  provisions,  nor  make  compromises  not  sanctioned  by  it.     The 


LiNDSEY    V.  HaWES.  19 

court  decreed  that  the  defendants  should  convey  to  Cunningham, 
who  had  the  paramount  equity.  In  this  case,  which  had  been  long 
contested,  and  had  received  the  consideration  of  the  receiver, 
register.  Commissioner,  Attorney  General,  and  Secretary  of  the 
Treasury,  all  of  whom  had  concurred  in  rejecting  plaintiff's  claim, 
he  had  never  received  any  certificate  nor  actually  paid  any  money, 
yet  the  court  held  that  it  would  look  into  the  equities  of  the  case 
and  set  aside  the  acts  of  all  these  officers,  because  they  had  erred, 
to  use  the  language  of  the  court,  both  as  to  the  law  and  the  facts 
to  the  prejudice  of  complainant.""  In  BarnarcVs  Heirs  v.  Ashhy's 
Heirs,  18  How.,  43.  this  court  again  decided  that  it  would  incpiire 
into  the  facts  of  a  disputed  entry,  notwithstanding  the  decision  of 
the  register  and  receiver. 

But  the  clearest  statement  of  the  rule  established  by  this  court 
on  this  subject  is  to  be  found  in  the  case  of  Garland  v.  Wynn,  20 
How.,  8.     Wynu's  entry,  which  was  the  elder,  had  been  set  aside, 
and  the  money  refunded  and  a  patent  certificate  awarded  to  Hemp- 
hill, who  assigned  to  Garland,  to  whom  the  patent  issued.     Wynn 
brought  his  suit  in  equity  to  compel  from  Garland  the  conveyance 
of  the  legal  title,  on  the  ground  that  these  proceedings  were  illegal, 
and  that  he  had  the  equitable  right.     Garland  insisted  that  the 
Circuit  Court  had  no  authority  or  jurisdiction  to  set  aside  or  correct 
the  decision  of  the  register  and  receiver,  and  that  their  adjudica- 
tion was  conclusive.     Mr.  Justice  Catron,  in  delivering  the  opinion 
of  the  court,  says  :  "  The  general  rule  is  that  where  several  parties 
set  up  conflicting  claims  to  property,  with  which  a  special  tribunal 
may  deal,  as  between  one  party  and  government,  regardless  of  the 
rights  of  others,  the  latter  may  come  into  the  ordinary  courts  of 
justice  and  litigate  the  conflicting  claims.     Such  was  the  case  of 
Comegys  v.  Vasse,  1  Peters,  212,  and  the  case  before  us  belongs 
to  the  same  class  of  ex  parte  proceedings.     Nor  do  the  regulations 
of  the  Commissioner  of  the  General  Land  Office,  whereby  a  party 
may  be  heard  to  prove  his  better  claim  to  enter,  oust  the  jurisdic- 
tion of  the  courts  of  justice.     We  announce  this  to  be  the  settled 
doctrine  of  this  court."     In  LyttJe  et  ah  v.  State  of  Arlmnsas  et  al., 
22  How.,  192,  the  same  member  of  the  court,  delivering  its  opinion, 
says  :  "  Another  preliminary  question  is  presented  on  this  record, 
namely,  whether  the  adjudication  of  the  register  and  receiver  which 
authorized  Cloy's  heirs  to  enter  the  land  is  subject  to  revision  in 
courts  of  justice,  on  proof  showing  that  the  entry  was  obtained 
by  fraud   and  the  imposition  of  false  testimony  on  those  officers 


20  Ltndsey  v.  Hawes. 

as  to  settlement  and  cultivation.     We  deem  tliis  question  too  well 
settled  in  the  affirmative  for  discussion." 

We  are  not  now  disposed  to  question  the  soundness  of  these- 
decisions,  and  they  clearly  dispose  of  the  ol)jection  raised  by  de- 
fendants on  this  branch  of  the  case. 

We  now  proceed  to  inquire  into  the  grounds  upon  which  the 
entry  of  Thomas  Lindsey  was  set  aside,  and  the  application  of 
David  Hawes  to  enter  the  same  land  was  allowed.  It  appears 
that  some  five  years  after  Lindsey' s  entry  was  made,  upon  the 
suggestion  of  Silas  Reed  that  there  was  an  error  in  Bennett's 
survey  of  this  qiiarter,  the  commissioner  ordered  a  new  survey  to  be 
made  of  that  section.  This  survey  was  made  for  the  government 
by  George  B.  Sargent  in  the  fall  of  1H44.  It  differed  from  the 
original  survey  in  two  particulars,  namely,  that  the  southwest 
fractional  quarter  was  found  to  contain  13.23  acres  instead  of 
5.17,  and  the  south  line  of  the  quarter-section  was  located  so  far 
north  as  to  leave  the  house  in  which  Lindsey  resided  when  he 
made  his  entry  entirely  south  of  the  quarter. 

The  act  of  June  22. 1838.  under  which  Lindsey  claimed  his  right 
of  pre-emption  and  made  his  entry,  provides  :  ''  That  every  actual 
settler  of  the  public  lands,  being  the  head  of  a  family,  over  twentj^- 
one  years  of  age,  who  was  in  possession,  and  a  housekeeper,  by 
personal  residence  thereon  at  the  time  of  the  passage  of  this  act,  and 
for  four  months  next  preceding,  shall  be  entitled  to  all  the  bene- 
fits and  privileges  of  an  act  entitled  '  An  act  to  grant  pre-emption 
rights  to  settlers  on  public  lands.'  "  It  is  shown  by  the  letter  of 
James  Shields,  Commissioner  of  the  General  Land  Office,  dated  Aug- 
ust 9,  184.5,  to  the  register  and  receiver  at  Dixson,  that  Lindsey* s 
entry  was  set  aside  by  him  because,  by  the  re-survey,  Lindsey' s 
house  was  not  on  the  fractional  quarter  in  controversy.  We  are 
not  prepared  to  admit  that  if  the  second  survey  be  the  correct 
and  proper  subdivision  of  that  section  into  quarters  and  fractions 
of  quarters,  and  that  by  this  survey  (though  otherwise  by  the 
former)  the  house  of  Lindsey  was  found  not  to  be  in  the  fraction 
pre-empted  by  him,  the  commissioner  could,  for  this  reason  alone, 
set  aside,  in  this  summary  manner,  the  sale  of  the  land  made  by 
the  government  to  Lindsey,  It  is  to  be  remembered  that  the 
original  sur\-ey  of  Bennett  was  the  survey  of  the  government ; 
that  it  was  made  in  1833  ;  that  the  maps,  plats,  certificates,  and 
field  notes  were  all  filed  in  the  proper  office  :  the  survey  approved, 
and  that  for  eleven  years  the  government  had  acted  upon  and 


LiNDSEY   V.  HaWBS.  21 

recognized  it  as  valid  and  correct ;  and  above  all,  had  sold  the  land 
to  Lindsey  by  this  its  own  survey,  received  the  purchase-money 
and  given  him  a  patent  certificate,  five  years  before  anj'^  sugges- 
tion was  made  of  this  error.  The  money  thus  received  by  the 
government  has  never  been  returned,  nor  do  we  think  it  would 
vary  the  rights  of  the  parties  if  it  had  been  actually  tendered  to 
him  or  his  heirs.  We  are  of  opinion,  under  these  circumstances, 
that  so  far  as  the  location  of  the  lines  of  that  quarter-section  affect 
the  question  of  the  precise  locality  of  Lindsey' s  residence,  as 
bearing  on  his  right  to  enter  that  fraction  as  a  pre-emption,  the 
government  was  bound  hy  the  original  survej^  of  Bennett. 

We  do  not  here  deny  the  right  of  the  government,  which  has 
sold  land  by  the  acre  at  a  fixed  price,  to  make  a  new  survey  before 
it  parts  with  the  title,  and  if  there  is  more  land  than  was  paid  for, 
to  require  the  deficiency  to  be  paid  before  it  issues  a  patent. 

On  that  subject  we  decide  nothing,  because  it  is  not  necessarj'^ 
in  this  case.  Lindsey' s  heirs  were  never  notified  of  the  additional 
number  of  acres  found  to  be  in  the  fraction,  nor  were  they  re- 
quired or  permitted  to  pay  for  this  increase. 

The  language  of  the  act  of  1838,  already  quoted,  certainlj^ 
required  of  Lindsey  that  he  should  have  possession,  by  personal 
residence  thereon,  of  the  land  which  he  entered ;  and  if  he  had 
not  such  residence,  or  rather  such  possession,  the  commissioner 
was  justified  in  vacating  the  entry.  But  this  fact  must  be  de- 
termined on  the  basis  of  Bennett's  survey. 

On  this  point  a  few"  facts  found  among  the  mass  of  testimony 
in  the  record,  about  which  there  is  scarcely  a  dispute,  will  enable 
us  to  form  a  just  conclusion. 

The  east  and  west  lines  which  divide  a  section  into  north  and 
south  quarter-sections  are  not  usually  run  out  and  marked  by  the 
government  surveyors  ;  but  instead  of  this,  as  they  run  the  north 
and  south  lines,  they  set  up  on  these  lines  what  they  call  the  quarter- 
section  posts — that  is,  they  mark  the  points  where  this  line  should 
begin  and  end.  When  Lindsey  was  about  to  make  his  pre-emption 
claim,  in  order  to  ascertain  whether  he  resided  on  this  fraction,  he 
procured  the  count}^  surveyor  of  Rock  Island  county  to  come  and 
run  this  quarter-section  line.  Several  of  the  witnesses  who  were 
present  when  this  survey  was  made  have  testified  in  the  case,  and 
C.  H.  Stoddard,  a  practical  surveyor  of  intelligence  and  candor, 
as  shown  by  his  testimony,  also  made  a  survey-  from  Bennett's 
field  notes  since  this  suit  was  instituted.     Some  of  the  persons 


22  LiNDSEY  V.  Hawes. 

present  when  the  survey  was  made  by  Baxter,  the  surveyor  of 
Rock  Island  county,  looked  through  the  compass  and  observed 
where  the  line  struck  Lindsey's  house,  and  a  notch  was  made  on 
his  stone  chimney'  where  the  line  was  seen  to  toucli  it,  which  was 
there  when  the  depositions  were  taken  in  this  suit,  and  was  identi- 
fied by  witnesses  who  saw  it  made.  The  fair  result  of  all  the  testi- 
mony' on  tliis  point  is.  tliat  the  house  in  which  Lindsey  resided 
was  directly  on  this  line,  which  would  intersect  the  house  so  as  to 
throw  perhaps  the  larger  part  on  the  other  quarter,  and  a  part 
something  less  than  half  into  this  quarter. 

It  is  proved  that  he  had  another  building  on  this  fraction  wholly, 
which  is  sometimes  spoken  of  as  his  stable,  and  sometimes  as  a 
blacksmith  shop,  in  which  he  worked  at  that  trade.  It  is  also 
shown  that  the  ground  cultivated  by  him  was  exclusively  on  this 
fraction,  and  the  proof  of  its  cultivation  and  inclosure  is  quite  clear. 
On  these  facts,  was  he,  within  the  meaning  of  the  statute,  in  pos- 
session of  this  fraction  by  personal  residence  thereon? 

The  counsel  for  appellees  has  made  a  vigorous  argument  in  sup- 
port of  the  negative  of  this  question.  Assuming  that  Lindsey 
could  not  have  a  residence  on  both  the  northeast  and  southeast 
quarter-sections  at  one  time,  and  claiming  that  the  case  is  to  be 
governed  by  the  analogies  of  a  question  of  domicile  in  a  case  of 
conflicting  jurisdictions,  he  has  made  an  apparently  strong  case 
out  of  the  fact  that  the  larger  portion  of  the  house  is  on  the  south 
side  of  the  line.  This,  however,  is  not  a  case  of  domicile  under 
different  governments  or  conflicting  jurisdictions.  It  is  a  question 
arising  under  the  government  of  the  United  States,  and  concerns 
a  construction  of  one  of  its  most  benevolent  statutes,  made  for 
the  benefit  of  its  own  citizens,  inviting  and  encouraging  them 
to  settle  upon  its  public  lands.  The  government  which  made 
the  law  owned  both  quarter-sections,  and  was  indiff'erent  as  to 
which  should  be  sold  to  Lindsey,  provided  it  was  legally  done. 
Lindsey' s  house  was  on  both  quarter-sections.  He  lived  or  resided 
in  all  that  house.  So  far  as  mere  personal  residence  is  concerned, 
we  think  he  may  be  correctly  said  to  have  resided  on  both  quarter- 
sections.  "  The  law  only  required  that  he  should  personally  reside 
on  the  quarter  which  he  claimed  to  enter,  and  if  he  resided  on 
both,  then  clearly  he  resided  on  this  one. 

But  the  language  of  the  act  makes  possession  the  principal 
matter,  and  personal  residence  the  qualifying  matter.  Leaving 
out  th'C  word  housekeeper,  which  is  not  in  question,  the  qualifica- 


LiNDSEY  V.  IIawes.  23 

tion  of  a  person  who  can  pre-empt  under  the  act,  is  one  "  who  was 
in  possession  by  personal  residence  thereon."  Now,  that  Lindsey 
was  in  possession,  is  shown  by  his  stable  or  blacksmith  shop,  by 
his  inclosure  and  cultivation  of  the  ground,  or  a  part  of  it.  When, 
in  addition  to  these  facts,  a  considera1>le  part  of  the  house  in 
which  he  and  his  family  lived,  was  also  on  this  little  five-acre 
piece  of  ground,'  may  it  not  be  said  that  he  had  possession  of  it 
by  personal  residence  thereon  ? 

We  are  of  oi)inion  that  on  the  true  construction  of  the  statute, 
he  had.  It  follows  from  what  we  have  said,  that  the  patent  certifi- 
cate issued  to  Thomas  Lindsey  was  rightfully  issued  by  the  receiver 
and  register,  that  the  act  of  the  commissioner  in  setting  it  aside 
was  illegal,  and  did  not  destroy  the  right  thus  vested,  that  the 
land  was  not  subject  to  entry  by  David  Hawes,  and  that  the 
patent  obtained  by  him  was  wrongfully  and  illegally  issued  to 
him,  and  that  the  plaintiffs  are  entitled  to  a  conveyance  of  the 
legal  title  from  him  and  his  co-defendants. 

The  decree  of  the  Circuit  Court  is  therefore  reversed,  and  the 

case  remanded  to  that  court,  tvith  instrxictions  to  enter  a 

decree  in  conformity  ivith  this  opinion. 

Note. — It  was  designed  by  the  present  system  of  surveyhig  the  public 
lands  to  provide  in  advance,  with  mathematical  precision,  the  ascertain- 
ment of  boundaries.  The  government  sells,  and  the  purchaser  takes  by 
metes  and  bounds,  according  to  the  public  survey,  whether  the  actual 
quantity  exceeds  or  falls  short  of  the  amount  of  land  estimated.  Leweji  v. 
Smith,  7  Port.,  (Ala.,)  428;  Broivn  v.  Hunt,  4  Ala.,  129  ;  Cake  v.  Banks,  13 
La.  Ann.,  128  ;  Stewart  v.  Bo>/d,  15  La.  Ann.,  171  ;  May  v.  Baskin,  12  ISmead 
&  M.  (Miss.)  428  ;  Bonney  v.  McLeod,  38  Miss.,  393;  Campbell  v.  Clark,  6 
Mo.,  219,  and  8  Mo.,  5.53.  Where  the  corners  fixed  by  the  survey  can  be 
found  and  identified,  they  are  conclusive.  Sawyer  v.  Cox,  G3  111-,  130; 
Martz  V.  Williams,  67  111.,  306;  Irvin  v.  Roiramel,  68  111.,  11;  Allman  v 
Stecens,  68  111.,  8%;  Climer  v.  Wallace,  28  Mo.,  556;  Kniyht  v.  Ellwl,  57 
Mo.,  317  ;  Jones  v.  Kimble,  19  Wis.,  429  ;  Martin  v.  Carlin.  19  Wis.,  454; 
Neff  V.  Paddock,  26  Wis.,  546.  In  disputed  section  corners  it  is  a  ques- 
tion of  fact  for  the  jury  to  ascertain  at  what  precise  point  the  disputed 
or  lost  corner  was  placed  by  the  original  survey.  Billimjsley  v.  Bates, 
30  Ala.,  376. 

It  has  been  held  that  the  lines  dividing  the  sections  into  half  and 
quarter  sections,  if  erroneous,  may  be  corrected  so  as  to  equally  divide 
the  section.  Nolen  v  Parmer,  21  Ala.,  C6.  But  a  deficiency  in  tlie  con- 
tents of  a  section  must,  as  between  a  quarter-section  and  a  residuary 
fraction,  fall  entirely  on  the  latter,  and  cannot  be  apportioned  between 
them.     Wharton  v.  Liitlefeld,  30  Ala.,  245. 


j 


24  Gazzam  v.  Phillips. 

Where  a  subdivision  of  a  fractional  section  lying  north  of  a  creek  is 
sold  as  containing  a  specified  number  of  acres,  the  purchaser  takes  all 
the  fraction  nortli  of  the  creek,  although  tlu^  actual  number  of  acres 
exceed  tliat  specified  by  the  survey  and  patent.  Stein  v.  Ashhy,  24  Ala., 
521,  and  30  Ala.,  36.'$ 

Where  fractional  pieces  of  land  are  bounded  in  part  by  a  stream  or 
bayou,  the  lines,  as  originally  run,  will  control,  aiul  the  purchaser  will 
be  restrained  to  the  boundaries  shown  by  the  plat  and  field  notes.  Mc- 
Cormirk  v.  Iliise,  78  111.,  363. 

Public  land  is  not  treated  as  surveyed  until  the  survey  has  been 
finally  approved  and  filed  in  tlie  local  land  oflace.  Collins  v.  BartMl,  44 
Cal.,  371. 


Chakles  W.  Gazzam,  plaintiff  in  error,  v.  Elam  Piiii^lips  and 

Others. 

December  Term,  18.57.— 20  Howard,  372;  2  Miller,  475. 
Construction  of  Patent,  as  to  description  of  the  Land  Granted. 

1.  The  boundaries  and  quantity  of  land  granted  by  a  patent  must  be 

ascertained  by  descriptive  language  in  the  patent. 

2.  An  equity  of  the  grantee  to  recover  more  or  different  land  cannot 

control  the  language  of  tlie  patent  in  an  action  at  law.     The  case 
of  Brown  v.  Clements,  3  How.,  650  ;  15  Curtis,  580,  overruled. 

This  is  a  writ  of  error  to  the  Supreme  Court  of  Alabama. 

The  case  is  well  stated  in  the  opinion. 

Mr.  J.  Little  Smith  for  plaintiff  in  error;  Mr.  Sherman  for 
defendant. 

Mr.  Justice  Nelson  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  Supreme  Court  of  the  State  of 
Alabama. 

The  suit  was  brought  in  the  court  below  to  recover  the  posses- 
sion of  some  four  acres  of  land  in  the  city  of  Mobile. 

The  lessors  of  the  plaintiff  claimed  title  to  the  lot  in  dispute  as 
heirs  of  James  Etheridge,  and  gave  in  evidence  a  patent  from  the 
United  States  to  their  ancestor,  dated  30th  May,  1833,  "for  the 
southwest  quarter-section  twenty-two,  in  township  four  south,  of 
range  one  west,  in  the  district  of  land  subject  to  sale  at  St.  Ste- 
phens, Ala-bama,  containing  ninety-two  acres  and  sixty-seven 
hundredths  of  an  acre,  according  to  the  official  plat  of  the  survey 
of  the  said  lands  returned  to  the  General  Land  Office  by  the  sur- 
veyor general,  which  said  tract  has  been  purchased  by  the  said 


Gazzam  v.  Phillips.  25 

James  Etheridge."    The  above  is  a  literal  extract  from  the  descrip- 
tion of  tlie  parcel  of  land  in  the  patent  granted  to  Etheridge. 

The  defendant  claimed  nnder  AVilliam  D.  Stone,  and  gave  in  evi- 
dence a  patent  to  him  from  the  United  States,  dated  the  1 7th  Decem- 
cember,  1832.  "for  the  sonth  snbdivision  of  fractional  section 
twenty -two,  same  township  and  range,  containing  one  hnndred  and 
ten  acres  and  fifty-one  hnndreths  of  an  acre,  according  to  the  official 
plat  of  the  survey  of  the  said  lands  returned  to  the  General  Land 
Office  by  the  surveyor  general,  which  said  tract  has  been  purchased 
by  the  said  William  D.  Stone."  Etlieridge  gave  notice  to  the  regis- 
ter and  receiver  of  his  claim  under  the  act  of  29th  May,  1830,  on 
the  28th  of  January,  1831,  and  produced  his  proofs.  Stone  gave 
notice  of  his  claim  to  the  same  section  25th  March.  1831.  and  fur- 
nished his  proofs.  The  claim  and  proofs  in  each  case  were  received 
and  filed,  but  no  money  was  paid,  nor  certificates  given,  as  the  official 
plat  of  the  survey  of  the  township  had  not  then  been  received  at 
the  office.  This  plat  was  returned  and  filed  in  March,  1832. 
There  were  private  claims  surveyed  and  laid  down  on  the  plat  to 
this  section,  so  that  the  portion  open  to  the  two  pre-emption 
claims  in  question  was  confined  to  a  fractional  part  of  the  section. 
This  fractional  part  was  divided,  according  to  the  plat,  by  a  line 
running  north  and  south  through  it.  laying  off  in  the  west  subdi- 
vision ninetj^-two  and  sixty-seven  hundredths  acres,  and  in  the  east 
one  hundred  and  ten  and  fifty  hundredths  acres.  Etheridge  pur- 
chased the  west  and  Stone  the  east  subdivision. 

The  certificates  of  purchase  were  given  to  both  claimants  30th 
April,  1832.  The  one  to  Etheridge  is  for  the  southwest  quarter 
of  section  twenty-two,  containing  ninety-two  and  sixty-seven  hun- 
dredths acres,  the  quantity  in  the  west  subdivision,  at  the  rate  of 
one  dollar  twenty-five  cents  per  acre,  amounting  to  $115.43  :  the 
other  to  Stone  is  for  the  southeast  subdivision  of  fractional  section 
twenty-two,  containing  one  hundred  and  ten  and  fifty-one  hun- 
dredths acres,  the  quantity  in  the  east  subdivision,  at  the  rate  of 
one  dollar  twenty-five  cents  per  acre,  amounting  to  $138.13. 

The  sales  in  each  case  were  made  in  conformity  with  the  sub- 
divisions, as  marked  upon  the  plat  of  the  surveyor  general  then 
on  file  in  the  office,  and  to  which  all  purchasers  of  the  public  land 
had  access,  and  which  constituted  the  guide  of  the  register  and 
receiver  in  making  the  sales. 

The  lessors  of  plaintifl"  also  gave  evidence  showing  that  tlie 
premises  in  question  were  within  tlie   southwest  quarter-section 


26  Gazzam  v.  Phillips. 

twenty-two.  computing  the  same  according  to  the  usnal  measnre- 
ment  of  quarter-sections,  and  that  a  full  quarter  might  have  been 
laid  off  from  the  fraction,  and  claimed  that  the  whole  of  the  south- 
west quarter  had  been  appropriated  to  their  ancester,  Etheridge, 
under  the  pre-emption  act  of  IHoO,  which  position  was  assented 
to  by  the  court.  The  court  also  ruled  that  the  purchase  and  patent 
of  Stone,  under  whom  the  defendant  claims,  must  be  restrained 
to  the  fraction  in  the  west  part  of  the  southeast  quarter  of  section 
twenty-two,  and  that  it  gave  him  no  right  to  the  land  in  the  south- 
west quarter. 

The  effect  of  this  ruling,  when  applied  to  the  case,  gave  to  the 
heirs  of  Etheridge  one  hundred  and  sixty  acres  of  the  fractional 
section,  in  disregard  of  the  official  survey,  the  purchase  and  patent 
for  only  tlie  ninety-two  acres,  and  reduced  the  one  hundred  and 
ten  which  Stone  purchased,  and  had  a  patent  for,  to  some  forty- 
three  acres. 

The  court  is  of  opinion  this  ruling  cannot  be  maintained ;  for, 
conceding  for  the  sake  of  argument  that  the  plat  by  the  surveyor 
general  of  this  section  was  made  contrary  to  law.  the  ground  upon 
which  the  decision  is  sought  to  be  maintained,  and  that  Etheridge, 
under  the  pre-emption  act  of  1830,  was  entitled  to  purchase  the 
whole  of  the  southwest  quarter,  and  to  have  it  surveyed  and 
patented  to  him,  yet  it  was  not  so  surveyed,  nor  did  he  purchase, 
nor  lias  he  obtained  a  patent  for  the  same.  On  the  contrary,  he 
purchased  and  paid  for  the  west  subdivision  only  of  this  fractional 
section,  containing  ninety-two  acres,  and  took  out  a  patent  for  the 
subdivision.  And  in  addition  to  this,  Stone,  at  the  same  time, 
purchased  the  east  subdivision,  as  laid  down  on  the  official  plat, 
and  lias  received  a  patent  for  the  same,  and  which  includes  the 
premises  in  question. 

The  patent  to  Etheridge,  as  we  have  seen,  describes  the  land 
granted  as  the  southwest  quarter,  &c.,  containing  ninety-two  and 
sixty-seven  hundredths  acres,  according  to  the  official  plat  of  the 
survey  of  said  lands  returned  to  the  General  Land  Office  ;  and 
the  patent  to  Stone  is  equally  specific  in  the  description  of  the 
parcel  granted  to  liim.  The  title,  therefore,  to  the  premises  in 
question  was  never  in  the  ancestor  of  the  lessors  of  the  plaintiff, 
but  has  been  in  Stone,  and  those  holding  under  him,  since  the  1 7th 
December.  1832.  the  date  of  his  patent. 

The  case  of  the  claim  of  r:tlieridge  to  the  whole  of  this  south- 
west quarter,  some  years   after  the  issuing  of  the  patent  to  him 


Gazzam  v.  Phillips.  27 

and  Stone,  was  presented  to  the  Commissioner  of  the  Land  Office 
for  correction. 

It  was  there  elaborately  examined  by  the  counsel  for  the  appli- 
cant, and  by  the  Commissioner  of  the  Land  Office,  and  ultimately 
disposed  of  by  the  Secretary  of  the  Treasury,  on  tlie  opinion  of 
the  Attorney  General,  that  officer  maintaining  the  regularity  of 
the  survey,  and  of  course  confixing  the  grants  to  the  subdivisions 
as  laid  down  on  the  plat  referred  to  in  the  patents.  But,  as  we 
have  already  said,  whether  tliis  view  of  the  law  be  sound  or  not, 
it  cannot  control  the  question  before  us.  The  inquirj^  here  is  in 
respect  to  the  legal  title,  whetlier  it  was  in  Etheridge  or  Stone, 
under  the  descriptions  of  land  in  their  respective  patents.  Unless 
we  can  hold  that  it  passed  to  Etheridge  under  his  patent,  the 
plaintiff  must  fail.  And  we  have  seen  that,  without  disregarding, 
the  plainest  terms  used  in  the  description  of  the  tract,  it  is  impos- 
sible to  arrive  at  any  such  conclusion.  "We  deny,  altogether,  the 
right  of  the  court  in  this  action  to  go  bej^ond  these  terms,  thus 
explicit  and  specific,  and,  under  a  supposed  equity  in  favor  of 
Etheridge.  arising  out  of  the  pre-emption  laws,  to  the  whole  of  the 
southwest  quarter,  enlarge  the  description  in  the  grant,  or,  more 
accurately  speaking,  determine  the  tract  and  quantity  of  the  land 
granted  b}'  this  supposed  equity,  instead  of  bj^  the  description  in 
the  patent. 

But,  independently  of  the  above  view,  which  we  think  con- 
clusive against  the  plaintiff,  we  are  not  satisfied  that  there  was 
any  want  of  power  in  the  surveyor  general  in  making  the  sub- 
divisons  of  this  section  according  to  the  plat,  and  in  conformity 
with  which  the  sales  of  the  land  in  dispute  were  made. 

The  first  section  of  the  act  of  24th  April,  1820,  (U.  S.  St.,  p. 
566,)  after  referring  to  the  act  of  1805,  provides,  "that  fractional 
sections  containing  one  hundred  and  sixty  acres  or  upwards,  shall, 
in  like  manner,  as  nearly  as  practicable,  be  subdivided  into  half- 
quarter  sections,  under  such  rules  and  regulations  as  may  be  pre- 
scribed by  the  Secretary  of  the  Treasury  ;  but  fractional  sections, 
containing  less  than  one  hundred  and  sixty  acres,  shall  not  be 
divided,  but  shall  be  sold  entire." 

The  Secretary  of  the  Treasury  issued  his  regulations  to  the 
surveyor  general,  through  the  Commissioner  of  the  Land  Office,^ 
on  the  10th  June  following,  in  which  he  directed  that  fractional 
sections  containing  more  than  one  hundred  and  sixty  acres  should 
be  divided  into  half-quarter  sections,  by  nortli  and  south,  or  east 


28  Gazzam  v.  Phillips. 

and  west  lines,  so  as  to  preserve  the  most  compact  and  convenient 
forms.  The  fractional  section  in  question  was  divided  by  a  north 
and  south  line,  according  to  tliese  instructions. 

Under  them,  some  latitude  of  discretion  has  been  exercised  by 
the  surveyor  general  in  the  division  of  fractional  sections  exceed- 
ing the  quantity  mentioned,  regard  being  had  to  convenient  forms, 
and  to  avoid  the  subdivision  of  the  public  domain  into  ill-shaped 
and  unsaleable  fractions. 

The  question,  as  we  have  already  seen,  came  again  before  the 
Secretary  of  the  Treasury  in  the  case  of  Etheridge,  Ij^fore  us,  in 
1837.  and  the  construction  first  given,  and  also  the  practice  of  the 
surveyor  general  under  it,  confirmed.  The  surveys  of  the  public 
lands  under  this  regulation  had  then  been  in  operation  for  some  sev- 
enteen years,  and  has  since  been  continued.  Attorney  General  But- 
ler, upon  whose  authorit}^  the  Secretary  of  the  Treasury  confirmed 
the  survey  of  the  fractional  section  in  question,  in  a  well  considered 
opinion,  observed  that,  "  if  Congress  had  intended  that  fractional 
sections  should,  at  all  events,  be  divided  into  half-quarter  sections, 
when  their  shape  admits  the  formation  of  any  such  subdivision,  I 
think  they  would  have  said  so  in  explicit  terms,  and  that  the  discre- 
tionary' power  entrusted  to  the  secretary  would  have  been  plainly 
confined  to  the  residuary  parts  of  the  section  ;  and  further,  that 
the  clause  in  the  first  section  of  the  act  of  1820,  concerning  frac- 
tional sections  containing  less  than  one  hundred  and  sixty  acres, 
(which  are  not  to  be  divided  at  all.  but  sold  entire,)  is  decisive  to 
show  that  Congress,  which  passed  the  act,  did  not  deem  it  indis- 
pensable that  regular  half-quarter  sections  should,  in  all  practi- 
cable cases,  be  formed  by  the  surveyors  ;  on  the  contrary,  it  shows 
that  they  preferred  ia  single  tract,  though  containing  more  than 
eighty  acres,  and  though  capable  of  forming  a  regular  half-quarter, 
to  small,  inconvenient  fractions."  We  entirely  concur  in  this 
construction  of  the  act. 

The  only  difficulty  we  have  had  in  this  case  arises  from  the  cir- 
cumstance that  a  different  opinion  was  expressed  by  a  majority  of 
this  court  in  the  case  of  Broion^s  Lessee  v.  Clements  (3  Howard, 
p.  650.)  That  opinion  differed  from  the  construction  of  the  act 
of  1820,  given  by  the  head  of  the  land  department,  and  disap- 
proved of  the  practice  that  had  grown  up  under  it  in  making  the 
public  surveys  ;  and  also  from  the  opinion,  subsequently  confirm- 
ing this  construction  and  practice,  by  the  Secretary  of  the  Treas- 


Wilcox  v.  Jackson.  29 

ury  aiid  Attorney  General,  as  late  as  the  year  1837.     The  decision 
in  Brown,  v.  CUtneuts  was  made  in  the  December  term,  1844. 

It  is  possible  that  some  rights  may  be  disturbed  I)}-  refusing  to 
follow  the  opinion  expressed  in  that  case,  but  we  are  satisfied 
that  far  less  inconvenience  will  result  from  tliis  dissent  than  by 
adhering  to  a  principle  which  we  think  unsound,  and  which,  in 
its  practical  operation,  will  unsettle  the  surveys  and  subdivisions 
of  fractional  sections  of  the  public  land,  running  through  a  period 
of  some  twenty-eight  3'ears.  Any  one  familiar  with  the  vast 
tracts  of  the  public  domain  surveyed  and  sold,  and  tracts  surveyed 
and  vet  unsold,  within  the  period  mentioned,  can  form  some  idea 
of  the  extent  of  the  disturbance  and  confusion  that  must  inevi- 
tably How  from  an  adherence  to  any  such  principle.  We  cannot, 
therefore,  adopt  that  decision,  or  applj'  its  principles  in  rendering 
the  judgment  of  the  court  in  this  case. 

The  judgment  of  the  court  below  is  reversed,  wad  the 'proceed- 
inys  remitted  to  the  court,  to  award  a  venire.  tV<-. 


I)e  La  Fayette  Wilcox,  plaintiff  in  error,  v.  John  Jackson,  on 
the  demise  of  Mi  rkay  M'Connel,  defendant  in  error. 

January   Tenn,  1S39.— 18  Peters,  498;  13  Curtis,  'im. 

Assuming-  that  the  register  and  receiver  of  a  land  office  have  a  hiwfiil 
jurisdiction  to  decide  on  the  facts  of  a  pre-emption  claim,  if  they 
undertake  to  grant  land,  winch  Congress  have  declared  shall  not  be 
granted,  their  act  is  void. 

The  pre-emption  act  of  May  29,  1830.  ( 4  Stats,  at  Large,  42U.)  having 
forbidden  entries  on  land  appropriated  for  any  public  purpose. 
Held,  that  the  President  having,  under  the  autliority  of  Congress, 
appropriated  a  tract  of  public  land  to  the  use  of  a  military  post,  it 
was  within  the  reservation. 

The  President  acts,  in  many  eases,  thrt.ugh  the  heads  of  departments 
and  the  Secretary  of  ^Var  basing  directed  a  section  of  land  to  be 
reserved  for  military  purposes,  the  court  presumed  it  to  Iiave  been 
done  b}^  the  direction  of  the  President,  and  held  it  to  be,  by  law, 
his  act. 

Whenever  a  tract  of  land  has  been  appropriated  to  the  public  use,  it  is 
severed  from  the  mass  of  the  public  domain,  and  subsequent  laws  of 
sale  are  not  construed  to  embrace  it,  though  they  do  not  in  terms, 
except  it. 

The   question,  whetlier  a   title  to   a   portion  of    the  public  lands  has 
passed  from  the  United  States,  must  depend  exclusively  upon    '^e 
laws  of  the   United  States,  when  it  has   passed  it  tlien   be' 
subject  to  State  laws. 


30  Wilcox  v.  Jackson. 

The  case  is  stated  in  the  opinion  of  the  court. 

Butler  and  Grundy  (Attorney  General.)  tor  the  plaintifl". 

Key  and  Webster  contra. 

Barbouk,  J.,  delivered  the  opinion  of  tlie  court. 

This  is  a  writ  of  error  to  the  Supreme  Court  of  the  State  of 
Illinois,  prosecuted  under  the  25th  section  (1  Stats,  at  Large.  8o) 
of  the  Judiciary  Act  of  1789. 

It  was  an  action  of  ejectment  brought  by  the  defendant  in  error 
against  the  plantiff  in  error. 

From  an  agreed  case  stated  in  the  record,  the  following  appear 
to  be  the  material  facts  upon  wliich  the  questions  to  be  decided 
arise. 

The  land  in  question  is  part  of  fractional  section  10,  in  town- 
ship 39,  north  of  range  14,  east  of  the  third  principal  meridian,  in 
the  county  of  Cook,  and  State  of  Illinois  ;  and  embraces  the  mili- 
tary post  called  Fort  Dearborn,  of  which  post,  at  the  time  of 
bringing  the  suit,  Wilcox  was  in  possession,  as  the  commanding 
officer  of  the  United  States  ;  which  post  was  established  by  the 
United  States  in  1804,  and  was  thereafter  oc(!upied  by  the  troops 
of  the  United  States  until  the  16th  August,  1812,  when  the  troops 
were  massacred  and  the  post  taken  by  the  enemy.  It  was  reoc- 
cupied  in  1816,  when  the  United  States  built  upon  said  fractional 
section  some  factory  houses  for  the  use  of  the  Indian  Department. 

The  troops  continued  to  occupy  it  until  May,  1823,  when  it  was 
evacuated  by  order  of  the  government,  and  was  left  in  possession 
of  the  Indian  agent  at  Chicago. 

In  August,  1828,  it  was  again  occupied  by  the  troops,  acting 
under  the  orders  of  the  Secretary  of  War,  as  one  of  the  military 
posts  of  the  United  States.  It  was  again  evacuated  by  the  troops 
in  May,  1831  ;.  but  the  government  never  gave  up  possession  of 
it,  but  left  it  in  possession  of  one  Oliver  Newberry,  who  author- 
ized a  certain  George  Dole  to  take  and  keep  it  in  repair,  which  he 
accordingly  did. 

It  was  again  occupied  by  the  troops  of  the  government  in  June, 
1832,  under  command  of  an  officer  of  the  army  of  the  United 
States. 

It  has  been  occupied  by  the  troops,  and  was  generally  known 
at  Chicago  to  be  so  occupied,  from  that  time  up  to  the  commence- 
ment of  the  suit ;  and  was  at  the  time  of  the  trial  still  used  for 
that  purpose.  When  it  was  evacuated  in  1831,  the  quartermaster 
at  the  post,  acting  under  orders,  sold  the  greater  part  of  the 


Wilcox  v.  Jackson.  31 

movable    propert}^  in  ami  about  the  garrison  belonoing  to  the 
government,  but  sold  none  of  the  buildings. 

In  the  year  1817  John  B.  Beaubean,  bought  of  one  John  Dean, 
who  was  an  army  contractor  at  the  post,  a  house  built  upon  the 
land  by  Dean,  at  the  price  of  $1,000;  there  was  attached  to  the 
house  an  enclosure  occupied  by  Dean  as  a  garden  and  tield  : 
Beaubean  then  took  possession  of  the  house  and  inclosure.  and 
continued  in  possession,  cultivating  j^art  of  the  inclosure  every 
year,  from  1817  to  183G. 

In  182o.  the  factory  houses  on  the  land  at  said  post  were  sold 
by  order  of  the  Secretary  of  the  Treasury,  which,  after  an  inter- 
mediate sale,  were  bought  by  Beaubean  at  $500  :  who  took  pos- 
session,  and  coAtinued  to  occupy  the  same,  together  with  a  part 
of  the  quarter-section  of  land,  until  the  commencement  of  this, 
suit. 

Beaubean  continued  to  occupy  the  houses  and  inclosure.  and  to 
cultivate  a  part  of  the  land,  without  interruption,  from  1817  to 
the  commencement  of  this  suit.  The  land  was  surveyed  by  tlie 
government  in  1821. 

Since  it  was  reoccupied  by  the  troops  in  1832,  and  before  the 
1st  of  May,  1834,  the  United  States  built  a  lighthouse  on  part  of 
the  land,  and  have  kept  at  least  twenty  acres  constantly  inclosed 
and  cultivated  for  the  use  of  the  garrison.  In  the  year  1824.  at 
the  instance  of  the  then  Indian  agent  at  Chicago,  who  suggested 
that  it  would  be  convenient  for -the  accommodation  of  the  persons 
and  protection  of  the  property  of  the  agency,  the  Secretary  of  War 
requested  the  Commissioner  of  the  General  Land  Office  to  direct 
a  reservation  to  be  made  for  the  use  of  the  Indian  Department  at 
that  post ;  and  in  October.  1824,  the  commissioner  answered,  say- 
ing that  he  had  directed  the  section  now  in  question  to  be  reserved 
from  sale,  for  military  purposes. 

In  May,  1831,  Beaubean  luade  a  claim  for  pre-emption  of  the 
land  in  question  at  the  land  office  in  Palestine,  which  was  rejected. 
In  February,  1832,  in  answer  to  a  letter  from  Beaubean  on  the 
subject,  the  Commissioner  of  the  General  Land  Office  informed 
him  that  the  land  in  question  was  reserved  for  military  purposes. 

The  same  information  was  given  to  others  who  made  applica- 
tion in  behalf  of  Beaubean. 

In  1834,  he  made  claim  for  a  pre-emption  in  the  same,  at  the 
Danville  land  office,  which  was  also  rejected.  In  1835,  Beaubean 
applied  to  the  land  office  at  Chicago,  when  his  claim  to  pre-emp- 


32  Wilcox  c.  Jackson. 

tiou  was  allowed  ;  aiul  he  paid  the  purchase-money,  and  procured 
the  registers  certificate  thereof. 

Wilcox  went  into  and  continued  in  possession,  claiming  no  right 
of  ownership,  but  as  an  ollicer  of  the  United  States  only,  in  com- 
mand of  said  post,  acting  under  the  orders  of  the  Secretary  of 
War.  his  superior  officer,  and  the  United  States.  Beaubean  sold 
and  conveyed  his  interest  to  the  lessor  of  the  plaintiff. 

Upon  this  state  of  facts  two  (piestions  arise  which,  in  our  opin- 
ion, embrace  the  whole  merits  of  the  case,  and  which  we  will  now 
proceed  to  examine.  The  first  is.  whether,  under  the  facts  of  the 
case,  and  the  law  applying  to  them,  Beaubean  acquired  any  title 
whatsoever  to  the  land  in  (juestion? 

The  second  is,  whether,  if  he  did  acquire  any  title  at  all.  is  it 
such  an  one  as  will  enable  tlie  lessor  of  the  plaintiff' to  recover  in 
this  action? 

As  to  the  first  (luestion.  The  ground  of  the  claim  ^s  the  right 
of  Beaubean,  as  a  settler  to  a  pre-emption  under  the  act  of  the 
10th  June,  1834  (4  Stats,  at  Large.  678).  entitled  "An  act  to 
revive  an  act  granting  pre-emption  rights  to  settlers  on  the  public 
lands,  passed  29th  of  May,  1830.'" 

Now.  as  this  act  gives  to  the  persons  claiming  under  it  the 
benefits  and  privileges  provided  by  the  act  of  1830.  which  it 
revives,  we  nuist  look  to  this  last  act  in  order  to  ascertain  what 
are  those  benefits  and  privileges,  or.  in  other  words,  what  is  the 
character  of  the  pre-emption  right  thus  claimed,  and  on  what  lands 
the  claim  is  allowed  to  operate.  It  authorizes  every  settler  or 
occupant  of  the  public  lands,  under  the  circumstances  therein 
stated,  to  enter  with  the  register  of  the  land  office  in  which  the  laud 
lies,  by  legal  subdivisions,  a  quantity  of  land  not  exceeding  a 
quarter-section,  subject  to  the  following  limitations  and  restric- 
tions :  -'That  no  entry  or  sale  of  any  land  shall  be  made  under  the 
provisions  of  the  act  which  shall  have  been  reserved  for  the  use  of 
the  United  States,  or  either  of  the  several  States,  or  which  is  reserved 
from  sale  by  act  of  Congress,  or  by  order  of  the  President,  or  which 
ma}'  have  been  appropriated  for  any  purpose  whatsoever." 

Before  we  proceed  to  inquire  whether  tiie  laud  in  question  falls 
within  the  scope  of  an}'^  one  of  these  prohibitions,  it  is  necessary 
to  examine  a  preliminary  objection,  which  was  urged  at  the  bar, 
which,  if  sustainable,  would  render  that  inquiry  wholly  unavailing. 
It  is  this — that  the  acts  of  Congress  have  given  to  the  registers 
and  receivers  of  the  land  oflfices  the  power  of  deciding  upon  claims 


Wilcox  v.  Jackson.  33 

to  the  right  of  pre-emption  ;  that  upon  these  questions  they  act 
judicially ;  that  no  appeal  having  been  given  from  their  decision, 
it  follows  as  a  consequence  that  it  is  conclusive  and  irrever- 
sible. This  proposition  is  true  in  relation  to  every  tribunal 
acting  judicially,  whilst  acting  within  the  sphere  of  their  jurisdic- 
tion, where  no  appellate  tribunal  is  created  ;  and  even  when  there 
is  such  an  appellate  power,  the  judgment  is  conclusive  when  it 
only  comes  collaterally  into  question,  so  long  as  it  is  unreversed. 
But  directly  the  reverse  of  this  is  true  in  relation  to  the  judgment 
of  any  court  acting  beyond  the  pale  of  its  authority. 

The  principle  upon  this  subject  is  conciselj'^  and  accurately 
stated  by  this  court  in  the  case  of  Elliott  ct  al.  v.  Peirsol  et  al.,  1 
Pet..  340,  in  these  words  :  "  Where  a  court  has  jurisdiction,  it  has 
a  right  to  decide  every  question  which  occurs  in  the  cause  ;  and 
whether  its  decision  be  correct  or  otherwise,  its  judgment,  until 
reversed,  is  regarded  as  binding  in  every  other  court.  But  if  it 
act  without  authority,  its  judgments  and  orders  are  regarded  as 
nullities.  They  are  not  voidal)le.  but  simply  void."  Now  to  apply 
this.  Even  assuming  that  the  decision  of  the  register  and  receiver, 
in  the  absence  of  frauds,  would  be  conclusive  as  to  the  facts  of 
the  applicant  then  being  in  possession,  and  his  cultivation  during 
the  preceding  year,  because  these  questions  are  directly  submitted 
to  them  ;  yet  if  they  undertake  to  grant  pre-emptions  in  land  in 
which  the  law  declares  they  shall  not  be  granted,  then  they  are 
acting  upon  a  subject-matter  clearly  not  within  their  jurisdiction  ; 
as  much  so  as  if  a  court,  whose  jurisdiction  was  declared  not  to 
extend  bej'ond  a  given  sum.  should  attempt  to  take  cognizance  of 
a  case  beyond  that  sum. 

We  now  return  to  the  inquiry  whether  the  land  in  question  falls 
within  any  of  the  prohibitions  contained  in  the  act  of  Congress. 

Amongst  others,  lands  which  may  have  been  appropriated  for 
any  purpose  whatsoever,  are  exempt  from  liability  to  the  right  of 
pre-emption. 

Now,  that  the  land  in  question  had  been  appropriated  in  point 
of  fact,  there  can  be  no  doubt,  for  the  case  agreed  states  that  it 
has  been  used  from  the  year  1804  until  and  after  the  institution  of 
this  suit,  as  well  for  the  purpose  of  a  military  post  as  for  that  of 
an  Indian  agency,  with  some  occasional  interruption. 

Now,  this  is  appropriation,  for  that  is  nothing  more  nor  less 
than  setting  apart  the  thing  for  some  particular  use.  But  it  is 
said  that  this  appropriation  must  be  made  by  authority  of  law. 

3 


34  Wilcox  v.  Jackson. 

We  think  that  the  appropriation  in  this  case  was  made  by- 
authority  of  law.  As  far  back  as  the  year  1798,  see  act  of  May 
3,  of  that  year  (1  Stats,  at  Large,  554),  vol.  iii,  Laws  U.  S.,  46, 
an  appropriation  was  made  for  the  purpose,  amongst  other  things, 
of  enabling  the  President  of  the  United  States  to  erect  fortifica- 
tions in  such  place  or  places  as  the  public  safety  should,  in  his 
opinion,  require.  By  the  act  of  21st  of  April,  1806  (2  lb.,  402), 
vol.  iv.  Laws  U.  S.,  64,  the  President  was  authorized  to  estab- 
lish trading-houses  at  such  posts  and  places  on  the  frontiers  or 
in  the  Indian  country,  on  either  or  both  sides  of  the  Mississippi 
river,  as  he  should  judge  most  convenient  for  carrying  on  trade 
with  the  Indians. 

And  by  act  of  June  14,  1809  (3  lb.,  547).  he  was  authorized  to 
erect  such  fortifications  as  might,  in  his  opinion,  be  necessary  for 
the  protection  of  the  northern  and  western  frontiers. 

We  thus  see  that  the  establishing  trading-houses  with  the 
Indian  tribes,  and  the  erection  of  fortifications  in  the  west,  are 
purposes  authorized  by  law,  and  that  they  were  to  be  established 
and  erected  by  the  President. 

But  the  place  in  question  is  one  at  which  a  trading-house  has 
been  established,  and  a  fortification  or  military  post  erected.  It 
would  not  be  doubted,  we  suppose,  by  any  one,  that  if  Congress 
had,  by  law,  directed  the  trading-house  to  be  established  and  the 
military  post  erected  at  Fort  Dearborn,  bj^  name,  that  this  would 
have  been  by  authority  of  law.  But,  instead  of  designating  the 
place  themselves,  they  left  it  to  the  discretion  of  the  President, 
which  is  precisely  the  same  thing  in  effect.  Here,  then,  is  an 
appropriation,  not  only  for  one,  but  for  two  purposes,  of  the  same 
place,  by  authority  of  law.  But  there  has  been  a  third  a]Dpropria- 
tion  in  this  case  by  authority  of  law.  Congress,  by  law,  author- 
ized the  erection  of  a  liglithouse  at  the  mouth  of  Chicago  river, 
which  is  within  the  limit  of  the  land  in  question,  and  appropri- 
ated $5,000  for  its  erection  ;  and  the  case  agreed  states  that  the 
lighthouse  was  built  on  part  of  the  land  in  dispute  before  the  1st 
of  May,  1834. 

We  think,  then,  that  there  has  been  an  appropriation,  not  only 
in  fact,  but'  in  law. 

There  would  be  difficulty  in  deciding  to  what  extent  this  appro- 
priation reached,  if  there  were  not  materials  furnished  by  the 
record  which  reduce  it  to  precision.  At  the  request  of  the  Sec- 
retary of  War,  the  Commissioner  of  the  General  Land  OflSce,  in 


Wilcox  v.  Jackson.  35 

1824,  colored  and  marked  upon  the  map  this  very  section,  as 
reserved  for  military  purposes,  and  directed  it  to  be  reserved 
from  sale  for  those  purposes.  We  consider  this,  too,  as  having 
been  done  by  authority  of  law,  for,  amongst  other  provisions  in 
the  act  of  1830.  all  lands  are  exempted  from  pre-emption  which 
are  reserved  from  sale  by  order  of  the  President.  Now,  although 
the  immediate  agent  in  requiring  this  reservation  was  the  Secre- 
tary of  War,  yet  we  feel  justified  in  presuming  that  it  was  done  by 
the  approbation  and  direction  of  the  President.  The  President 
speaks  and  acts  through  the  heads  of  the  several  departments  in 
relation  to  subjects  which  appertain  to  their  respective  duties. 

Both  military  posts  and  Indian  affairs,  including  agencies,  belong 
to  the  War  Department.  Hence  we  consider  the  act  of  the  War 
Department  in  requiring  this  reservation  to  be  made  as  being,  in 
legal  contemplation,  the  act  of  the  President,  and  consequently 
that  the  reservation  thus  made  was,  in  legal  effect,  a  reservation 
made  by  order  of  the  President,  within  the  terms  of  the  act  of 
Congress. 

It  is  argued,  however,  that,  by  the  4th  section  (4  Stats,  at  Large, 
687)  of  the  act  of  the  26th  of  June.  1834,  the  President  was  au- 
thorized to  cause  to  be  sold  all  the  lands  in  the  northeast  district 
of  the  State  of  Illinois,  embracing  the  land  in  question,  with  certain 
reservations  only,  within  which  it  is  contended  that  the  land  in 
question  is  not  included  ;  that  a  proclamation  was  issued  directing 
various  lands  in  said  district  to  be  sold,  and  that  amongst  the 
lands  so  proclaimed  was  the  land  in  question,  unless  excepted  by 
the  following  exception  :  "The  lands  reserved  by  law  for  the  use 
of  schools,  and  for  other  purposes,  will  be  excluded  from  the  sale." 
And  that  an  extended  plat  was  forwarded  from  the  General  Land 
Office,  marking  and  coloring  certain  lands  to  be  reserved  from  sale  ; 
but  that  the  land  in  question  was  not  so  marked  or  colored  to  be 
reserved  from  sale. 

In  the  first  place,  we  remark  that  we  do  not  consider  this  law 
as  applying  at  all  to  the  case.  That  has  relation  to  a  sale  of  lands 
in  the  manner  prescribed  by  general  law  at  public  auction,  whilst 
the  claim  to  the  land  in  question  is  founded  on  a  right  of  pre- 
emption and  governed  by  different  laws.  The  very  act  of  19th  of 
June,  1834,  under  which  this  claim  is  made,  was  passed  but  one 
week  before  the  one  of  which  we  are  now  speaking,  thus  showing 
that  the  provisions  of  the  one  were  not  intended  to  have  any  effect 
upon  the  subject-matter  on  which  the  other  operated.     But  we  go 


36  Wilcox  v.  Jackson. 

further,  and  say  that  whensoever  a  tract  of  land  shall  have  once 
been  legally  approi)nated  to  any  purpose,  from  that  moment  the 
land  thus  appropriated  becomes  severed  from  the  mass  of  public 
lands,  and  that  no  subsequent  law,  or  proclamaticm,  or  sale,  would 
be  construed  to  embrace  it,  or  to  operate  upon  it,  although  no 
reservation  were  made  of  it. 

The  very  act  which  we  are  now  considering  will  furnish  an  illus- 
tration of  this  i)roposition.     Thus,  in  that  act,  there  is  expressly 
reserved  from  sale  the  land  within  that  district  which  had  been 
granted  to  individuals  and  the  State  of  Illinois.     Now,  suppose  this 
reservation  had  not  been  made,  either  in  the  law,  proclamation,  or 
sale,  could  it  be  conceived  that,  if  that  land  were  sold  at  auction, 
the  title  of  the  purchaser  would  avail  against  the  individuals  or 
State  to  whom  the  previous  grants  had  been  made?     If,  as  we 
suppose,  this  question  must  be  answered  in  the  negative,  the  same 
principle  will  apply  to  any  land  which,  by  authority  of  law,  shall 
have  been  severed  from  the  general  mass.     Let  us,  for  a  moment, 
consider  to  what  results  a  contrary  doctrine  would  lead,  and  the 
case  before  us  will  furnish  a  very  striking  illustration  of  them. 
If  the  party  claiming  the  pre-emption  right  here  were  to  succeed, 
too-ether  with  the  land,  he  winild  recover  all  the  improvements 
made  upon  it  at  the  public  expense.    The  lighthouse  and  improve- 
ments alone,  it   seems,  by  reference  to  the  act  making  an  appro- 
priation for  its  erection,  cost  $5,000.     How  much  was  expended 
in  the  buildings  at  the  military  post  we  have  no  means  of  knowing, 
but  probal)ly  a  considerably  larger  sum.     Thus,  besides  the  land 
purchased  for  the  sum  of  $94.61,  he  would  recover  property — and 
that,  too,  property  necessary  for  the  military  defence  and  com- 
merce of  the  country — which  cost  the  United  States  many  thou- 
sands f)f  dollars  ;  and  if  there  had  been  expended  upon  it  as  many 
hundreds  of  thousands  as  there  have  been  thousands  the  same 
result  would  follow.     A  principle  leading  to  such  startling  conse- 
quences cannot,  in  our  opinion,  be  a  sound  one.     The  right  of 
pre-emption  was  a  bounty  extended  to  settlers  and  occupants  of 
the  public  domain.     We  cannot  suppose  that  this  bounty  was  de- 
sio-ned  to  be  extended  at  the  sacrifice  of  public  establishments  or 
great  public  interests.     When  the  act  of  1830  was  passed  Con- 
gress must  have  known  of  the  authority  which  had  by  former  laws 
been  given  to  the  President  to  establish  trading-houses  and  mili- 
tary posts.     They  must  have  known,  for  it  was  part  of  the  public 
history  of  the  country,  that  a  military  post  had  been  long  estab- 


Wilcox  v.  Jackson.  37 

lished  at  P'ort  Dearljorn.  and  was  at  the  date  of  the  law  occupied 
as  such  l)y  the  troops  of  the  United  States.  They  seem,  therefore, 
to  have  been  studious  to  use  language  of  so  comprehensive  a  kind 
in  the  exemption  from  the  right  of  pre-emption,  as  to  embrace  every 
description  of  reservation  and  appropriation  whicli  had  been  pre- 
viously made  for  public  purposes. 

We  have  already  said  that  we  think  the  language  in  which  these 
exemptions  are  expressed  is  comprehensive  enough  to  embrace 
the  present  case,  so  as  to  place  it  beyond  the  reach  of  the  right  of 
pre-emption. 

It  is  further  argued  that  this  case  is  embraced  by  the  2d  section 
of  the  act  of  July  2,  1836,  (5  Stats,  at  Large,  73,)  entitled  "  An 
act  to  confirm  the  sales  of  public  lands  in  certain  cases."'  That  sec- 
tion is  in  these  words  :  '-And  be  it  further  enacted.  That  in  all  cases 
where  an  entry  has  been  made  under  the  pre-emption  laws  pur- 
suant to  instructions  sent  to  the  register  and  receiver  from  the 
Treasury  Department,  and  the  proceedings  have  been  in  all  other 
respects  fair  and  regular,  such  entries  and  sales  are  hereby  con- 
firmed, and  patents  shall  be  issued  thereon  as  in  other  cases." 
Now,  the  first  remark  we  make  upon  this  act  is,  that  when  the 
previous  law  had  totally  exempted  certain  lands  from  the  right  of 
pre-emption,  if  there  were  nothing  else  in  the  case,  it  would  be  a 
very  strong,  not  to  say  strained,  construction  of  this  section  to 
hold  that  Congress  meant  thereby,  by  implication,  to  repeal  tlie 
former  law  in  so  important  a  provision.  But  we  are  satisfied  that 
there  were  other  cases  to  which  it  was  intended  to  apply ;  where 
the  instructions  from  the  Treasury  Department  assumed,  to  say 
the  least,  a  doubtful,  if  not  an  illegal,  power.  As,  for  example, 
the  instructions  of  the  7th  February  and  17th  October,  1831.  by 
which  entries  were  allowed  to  l)e  made  and  certificates  issued 
under  the  act  of  1830,  which  was  only  in  force  for  one  year  from 
its  passage  after  the  expiration  of  the  year,  where  the  persons 
claiming  had  been  deprived  of  the  benefits  of  the  act  of  1830  by 
reason  of  the  township  plats  not  having  been  furnished  by  the 
survej'or  general,  and  where,  nevertheless,  proofs  of  the  claim  had 
been  filed  before  the  expiration  of  the  year.  To  this  case,  and 
others  similarly  situated,  the  law  may  well  apply  ;  because,  without 
affecting  the  general  principles  of  the  system,  they  present  in- 
stances in  which  innocent  parties  would  have  been  injured  by  the 
acts  or  omissions  of  public  officers,  or  by  some  other  cause,  as  to 
which  no  fault  was  imputable  to  them.     But,  further,  the  entries 


38  Wilcox  v.  Jackson. 

to  be  saved  by  this  section  must  have  been  pursuant  to  instruc- 
tions sent  to  the  register  and  receiver  from  tlie  Treasur}^  Depart- 
ment. 

Now,  it  not  only  is  not  shown  that  any  instructions  were  so 
sent,  which  would  authorize  this  pre-emi^tion  ;  Init  on  the  contrary 
the  agreed  case  shows  that  the  register  and  receiver,  at  the 
Palestine  land  office,  rejected  it  in  1831  ;  that  the  Commissioner 
of  the  General  Land  Office,  in  the  same  year,  in  answer  to  a  letter 
of  Beaubean  complaining  of  that  rejecting,  informed  him  that  the 
land  was  reserved  for  military  purposes  ;  and  that,  in  July,  1834, 
after  the  passage  of  the  pre-emption  law  of  that  year,  he  applied 
to  the  register  and  receiver  of  the  Danville  land  office  to  prove  a 
pre-emption  to  the  same  land,  who  also  rejected  the  application, 
and  again  informed  him  that  it  was  reserved  for  military  purposes. 
Finally,  by  the  express  terms  of  this  section,  entries  under  the 
pre-emption  laws,  to  be  protected  by  it,  must  be  in  all  other 
respects  fair  and  regular.  Now,  as  the  patents  were  to  be  issued 
by  the  Commissioner  of  the  General  Land  Office,  and  as  they  were 
only  to  issue  where  the  proceedings  were  fair  and  regular,  that 
officer  must  of  necessity  be  the  judge  of  that  fairness  and  regu- 
larity. 

But,  as  he  refused  to  issue  the  patent,  we  know  not  whether  he 
considered  the  proceedings  in  this  case  as  being  fair  and  regular. 

If  they  were  not  so,  then  they  were  not  confirmed.  We  think, 
therefore,  that  the  claimant  can  derive  no  aid  from  the  act  of  1836. 

Our  conclusion,  then,  in  relation  to  the  first  question  is,  that, 
under  the  facts  of  the  case,  and  the  law  applying  to  them.  Beau- 
bean  acquired  no  title  whatsoever  to  the  land  in  question. 

This  being  the  case,  it  would  not  be  absolutely  necessary  to 
decide  the  second  question  :  but.  as  it  arises  in  the  case,  and  has 
been  fully  argued,  we  will  bestow  upon  it  a  very  brief  examina- 
tion. That  question  is.  whether,  if  he  had  acquired  any  title  at 
all,  it  was  such  an  one  as  would  enable  the  lessor  of  the  plaintiff 
below  to  recover  in  this  action? 

Wilcox,  the  defendant  in  the  original  suit,  did  not  claim,  or 
pretend  to  set  up  any  right  or  title  in  himself.  He  held  possession 
as  an  officer  of  the  United  States  :  and  for  them,  and  under  their 
orders.  This  being  the  state  of  the  case,  the  question  which 
we  are  now  examining,  is  really  this,  whether  a  person  holding 
a  register's  certificate  without  a  patent,  can  recover  the  land  as- 
against  the  United  States. 


Wilcox  v.  Jackson.  39 

We  think  it  unnecessary  to  go  into  a  detailed  examination  of 
the  various  acts  of  Congress,  for  the  purpose  of  showing  what  we 
consider  to  be  true  in  regard  to  tlie  public  lands,  that,  with  the 
exception  of  a  few  cases,  nothing  but  a  patent  passes  a  perfect  and 
consummate  title.  One  class  of  cases  to  be  excepted  is,  where  an 
act  of  Congress  grants  land,  as  is  sometimes  done  in  words  of 
present  grant. 

But  we  need  not  go  into  these  exceptions.  The  general  rule 
is  what  we  have  stated ;  and  it  applies  as  well  to  pre-emptions  as 
to  other  purchases  of  public  lands.  Thus  it  Avill  appear,  by  the 
very  act  of  1836,  which  we  have  been  examining,  that  patents  are 
to  issue  in  pre-emption  cases.  This,  then,  being  the  case,  and 
this  suit  having  been  in  effect  against  the  United  States,  to  hold 
that  tlie  party  could  recover  as  against  them,  would  be  to  hold  that 
a  party,  having  an  inchoate  and  imperfect  title,  could  recover 
against  the  one  in  whom  resided  the  perfect  title.  This,  as  a 
o-eneral  proposition  of  law,  unquestionably  cannot  be  maintained. 

But  it  is  argued  that  a  law  of  the  State  of  Illinois  declares,  that 
a  registers  certificate  shall  be  deemed  evidence  of  title  in  the 
party,  sufficient  to  recover  possession  of  the  lands  described  in 
such  certificate,  in  any  action  of  ejectment  or  forcible  entry  and 
detainer ;  but  the  same  law  declares  that  this  shall  be  the  case, 
unless  a  better  legal  aild  paramount  title  be  exhibited  for  the  same; 
Upon  the  construction  of  the  law  itself,  it  would  not  apply  to  this 
case,  because  the  United  States  not  having  parted  with  a  consum- 
mate legal  title  by  issuing  a  patent,  a  better  legal  and  paramount 
title  was  exhibited  for  the  same.  Where  that  was  not  the  case, 
but  the  suit  should  be  against  any  person  not  having  the  right  of 
possession,  or  against  a  trespasser,  these  are  the  kind  of  cases  in 
which  it  would  seem  to  us.  by  the  proper  construction  of  the  act, 
that  it  was  intended  to  operate. 

A  much  stronger  ground,  however,  has  been  taken  in  argument. 
It  has  been  said  that  the  State  of  Illinois  has  a  right  to  declare, 
by  law.  that  a  title  derived  from  the  United  States,  which  by  their 
laws  is  only  inchoate  and  imperfect,  shall  be  deemed  as  perfect  a 
title  as  if  a  patent  had  issued  from  the  United  States  ;  and  the 
construction  of  her  own  courts  seem  to  give  that  effect  to  her 
statute.  That  State  has  an  undoubted  right  to  legislate  as  she 
may  please  in  regard  to  the  remedies  to  be  prosecuted  in  her  courts, 
and  to  regulate  the  disposition  of  the  property  of  her  citizens  by 
descent,  devise,  or  alienation.     But  the  property  in  question  was 


40  Wilcox  v.  Jackson. 

a  part  of  the  public  domain  of  the  United  States ;  Congress  is 
invested  by  the  Constitution  with  the  power  of  disposing  of.  and 
makiug  needful  rules  and  regulations  respecting  it.  Congress  has 
declared,  as  we  have  said,  bj^  its  legislation,  that,  in  such  a  case 
^s  this,  a  patent  is  necessary  to  complete  the  title. 

But,  in  this  case,  no  patent  has  issued ;  and,  therefore,  by  the 
laws  of  the  United  States,  the  legal  title  has  not  passed,  but 
remains  in  the  United  States.  Now,  if  it  were  competent  for  a 
State  legislature  to  say,  that,  notwithstanding  this,  the  title  shall 
be  deemed  to  have  passed,  the  effect  of  this  would  be,  not  that 
Congress  had  the  power  of  disposing  of  the  public  lands,  and 
prescribing  the  rules  and  regulations  concerning  that  disposition, 
but  that  Illinois  possessed  it.  That  would  be  to  make  the  laws 
of  Illinois  paramount  to  those  of  Congress,  in  relation  to  a  subject 
confided  bj^the  Constitution  to  Congress  only.  And  the  practical 
result  in  this  very  case  would  be  by  force  of  State  legislation,  to 
take  from  the  United  States  their  own  land,  against  their  own  will, 
and  against  their  own  laws.  We  hold  the  true  principle  to  be  this, 
that,  whenever  the  question  in  any  court.  State  or  federal,  is, 
whether  a  title  to  land,  which  had  once  been  the  property  of  the 
United  States,  has  passed,  that  question  must  be  resolved  by  the 
laws  of  the  United  States  ;  but  that,  whenever,  according  to  those 
laws,  the  title  shall  have  passed,  then  that  property,  like  all  other 
property  in  the  State,  is  subject  to  State  legislation,  so  far  as 
that  legislation  is  consistent  with  the  admission,  that  the  title 
passed  and  vested  according  to  the  laws  of  the  United  States. 

It  was  urged  at  the  bar,  that  the  case  of  Boss  v.  Doe,  on  the 
demise  of  Barland  and  others,  in  this  court,  1  Pet.,  655,  sustained 
the  ground  taken  as  to  the  obligatory  force  of  the  law  of  Illinois. 
A  very  brief  examination  of  that  case  will  sliow  that  it  falls  greatly 
short  of  what  it  is  supposed  to  decide.  That  was  a  conflict  between 
two  patentees,  both  claiming  under  the  United  States.  The  elder 
patent  was  founded  upon  a  cei'tificate  of  the  register  of  the  land 
office  west  of  Pearl  river.  The  junior  patent  was  issued  on  a  cer- 
tificate of  the  board  of  commissioners  west  of  Pearl  river.  The 
court  below  instructed  the  jury  that  tlie  junior  patent  of  the  plain- 
tiff in  ejectment,  emanating  upon  a  certificate  for  a  donation  claim 
prior  in  date  to  the  patent  under  which  the  defendant  claimed 
would  overreach  the  elder  patent  of  the  defendant,  and  in  point  of 
law,  prevail  against  it. 


Wilcox  v.  Jackson.  41 

It  appears  that,  by  the  mode  of  proceeding  in  INlississippi.  they 
look  beyond  the  grant. 

Tliis  court  remarking  upon  that,  said,  tliat  in  so  doing,  and  in 
applying  their  peculiar  mode  of  proceeding  to  titles  derived  through 
and  under  the  laws  of  the  United  States,  they  violated  no  provis- 
ions of  any  statute  of  the  United  States. 

But  the  court  then  proceeded  to  say  :  "  The  important  question 
in  the  case  is  this  :  in  applying  its  own  principles  and  practice  in 
the  action  of  ejectment,  as  might  well  be  done  in  this  case,  has 
the  court  misconstrued  the  act  of  Congress  in  deciding  that  the 
grant  of  the  plaintiff,  emanating  upon  the  donation  certificate  of 
the  board  of  commissioners  west  of  Pearl  river  set  forth  in  the 
record,  would  overreach  the  defendant's  grant,  and  should  prevail 
against  it  in  the  action  of  ejectment?"  They  then  proceed  to 
examine  the  various  acts  of  Congress  upon  the  subject ;  declare  their 
opinion  to  be.  that  the  determination  of  the  commissioners  was 
final ;  and  come  to  the  conclusion,  that  the  Supreme  Court  of  Mis- 
sissippi had  not  misconstrued  the  acts  of  Congress  from  which  the 
rights  of  the  parties  were  derived  ;  and,  consequently  alBrmed  the 
judgment.  Thus  it  will  appear  that,  in  that  case,  whilst  the  form 
and  mode  of  proceeding  by  the  law  of  Mississippi  were  recognized, 
yet  the  rights  of  the  parties  depended  exclusively  upon  the  con- 
struction of  acts  of  Congress,  and  that  this  court  thought  that  the 
court  below  had  construed  them  correctly.  This  case,  then  affords 
no  countenance  whatever  to  the  argument  founded  upon  it. 

Upon  the  whole,  ice  are  of  opinion  that  the  judgment  of  the 
Supreme  Court  of  Illinois  is  erroneous ;  it  is.  therefore, 
reversed,  ivith  costs. 

XoTE. — A  pre-emption  right  cannot  be  acquired  to  lands  certiticd  to 
the  State  under  an  act  of  Congress,  although  the  lands  were  not  embraced 
in  the  grant.  Belloics  v.  Todd,  34  Iowa,  18  ;  nor  to  the  "  Osage  Indian  " 
lands,  ceded  to  the  United  States  by  treaty  of  September  ^Dth,  1865,  and 
amendment  of  January  25th,  1867.  Wood  v.  M.  K.  and  T.  R.  R.  Co..  11 
Kansas,  323, 


42  Morton  v.  Nebraska. 

Morton  v.  Nkbkaska. 
October  Term,  1S74.— -21   Wallace.  060. 

1.  The  policj-  of  the  government,  since  the  acquisition  of  the  Northwest 

Territory  and  the  inau<<»u-ation  of  our  hmd  system,  to  reserve  salt 
springs  from  sale,  has  been  uniform.  This  policy  has  been  applied 
to  tlie  "■  Louisiana  Territory,"  acquiied  by  us  from  France  in  180.3, 
and  probably  wotdd  apply  to  the  Territory  of  Nebraska,  on  general 
principles.  ^Vhetller  or  not,  it  does  apply  under  the  act  of  .July  22d, 
1854,  "to  establish  the  offices  of  surveyor  general  of  New  Mexico, 
Kansas,  and  Nebraska."  It  applies  at  least  so  far  as  to  render  void 
an  entry  where  the  salines  at  the  time  had  been  noted  on  the  field- 
books,  were  palpable  to  the  eye,  and  were  not  first  discovered 
after  entry. 

2.  Patents  for  land  which  have  been  previously  reserved  from  sale  are 

void. 

3.  Where  an  act  of  Congress  speaks  of  "  vested  rights,"  protecting  them, 

it  means  rights  lawfully  vested.  Hence,  it  does  not  protect  a  loca- 
tion made  on  public  land  reserved  from  sale. 

Error  to  the  Supreme  Court  of  Nebraska. 

Morton  sued  certain  tenants  of  the  State  of  Nebraska  in  eject- 
ment to  recover  three  hundred  and  twenty  acres  of  salt  land — 
salines — in  the  said  State  ;  a  State  formed,  as  every  reader  of 
these  volumes  is  aware,  out  of  that  vast  region  formerl}'  known  as 
the  Territory  of  Louisiana,  and  purchased  in  ISOo  by  us  from 
France.  The  land  in  question  was  palpably  saline,  so  incrnsted 
with  salt  as  to  resemble  snow-covered  lakes.  The  salines  in  ques- 
tion were  noted  on  the  field-books,  but  these  notes  were  not  trans- 
ferred to  the  register  s  general  plats.  The  State  intervened  in  the 
suit,  and  by  its  own  request  was  made  a  defendant. 

The  plaintiff  based  his  title  under  locations  of  military  bounty- 
land  warrants  at  the  land  office  in  Nebraska  City,  in  September, 
18.59.  These  warrants  were  issued  by  virtue  of  the  Military 
Bounty-Land  Act  of  September  28th,  1850,  which  declared  that 
such  warrant  might  be  located  at  any  land  office  of  the  United 
States  upon  any  of  the  p.ublic  lands  in  such  district  tJie^i  subject  to 

private  entry. 

The  locators  of  the  warrants,  it  appeared,  before  they  made 
their  entries,  were  told  that  tlie  lands  were  salines.  The  State 
now  set  up  that  the  locations  were  without  aiithority  of  law, 
because  the  lands  being  saline  lands,  were  not  subject  to  such 
entry. 


Morton  v.  Nebraska.  43 

The  question  thus  was,  whether,  in  Nebraska,  saline  lands  were 
open  to  private  entry  ;  or,  more  strictly,  whether  thej^  were  so 
under  circumstances  such  as  those  above  stated. 

It  was  not  denied  by  the  plaintiff  that  the  practice  of  the  Fed- 
eral Government,  as  exhibited  by  man}'  acts  of  Congress  (which, 
being  referred  to  in  the  opinion  of  the  court,  need  not  here,  by 
the  reporter,  be  particularized,)  from  an  early  date  had  been  to 
exclude  this  sort  of  laud,  with  certain  other  sorts,  from  public 
sale  generally.  It  had  done  so  confessedly  from  the  Northwest- 
ern Territory,  and  from  the  Territory  of  Orleans,  the  now  State 
of  Louisiana.  But  the  defendants  conceived — and  such  was 
their  position — that,  under  the  statutes  regulating  the  matter  in 
Nebraska,  this  was  not  so.  The  matter  was  to  be  settled  by  cer- 
tain acts  of  Congress,  standing,  perhaps,  by  themselves  ;  or,  if 
their  language  was  not  clearly  enough  applicable  to  the  district  of 
Nebraska,  by  such  acts,  read  by  the  light  of  the  policy  of  the 
government,  and  its  numerous  enactments  on  the  main    subject. 

The  first  act  which  bore  directly  upon  the  matter  was  an  act  of 
March  3d,  1811,  (2  Stat,  at  Large,  665,  §  10,)  providing  for  the 
final  adjustment  of  claims  to  lands,  and  for  the  sale  of  the  public 
lands  in  tlie  Territories  of  Orleans  and  Louisiana.  This  act 
created  a  new  land  district,  and  authorized  the  President  to  sell 
any  surveyed  public  lands  in  the  Territory  of  Louisiana,  with 
certain  exceptions  named  : 

"  And  with  the  exception,  also,  of  the  salt  springs  and  lead 
mines,  and  lands  contiguous  thereto." 

Next  came  an  act  appro\ed  July  •22d,  18.54,  (10  Stat,  at  Large, 
308,)  more  immediately  bearing  on  the  matter :  "  An  act  to 
establish  the  offices  of  Surveyor  General  of  New  Mexico,  Kansas 
and  Nebraska,  to  grant  donations  to  actual  settlers  therein,  and 
for  other  purposes." 

This  was  an  act  of  thirteen  sections,  and,  as  its  title  shows, 
relating  to  three  different  territories. 

The  first  three  sections  related,  without  any  question,  exclu- 
sively to  the  Territory  of  New  Mexico. 

The  first  of  them  authorized  the  appointment  of  a  surve3'or 
general  for  that  territory,  with  the  usual  powers  and  obligations 
of  such  officers. 

The  second  made  a  donation  of  a  quarter-section  of  land  to  all 
white  males  residing  in  it,  who  had  declared  an  intention,  prior  to 
January  1st,  1853.  to  become  citizens  ;  and  also  (on  condition  of 


44  Morton  v.  Nebraska. 

actual  settlement.  &c..)  to  every  white  male  citizen  above  twenty- 
one  years  of  age,  who  should  remove  or  have  removed  there  be- 
tween January  1st,  1853,  and  January  1st.  1858. 

The  third  authorized  a  patent  for  sych  land  to  issue. 

Then  came  in  a  fourth  section,  in  these  words  :  "None  of  the 
provisions  of  this  (tct  shall  extend  to  mineral  or  school  lands, 
salines,  military  or  other  reservations,  or  lands  settled  on  or 
occupied  for  purposes  of  trade  and  commerce,  and  not  for  agricul- 
ture." 

This  fourth  section,  as  the  reader  will  observ^e.  does  not,  in 
twms,  refer  to  the  Territory  of  New  INIexico.  but  says,  none  of 
the  iJrovisio7is  of  this  act,  &c. 

However,  the  fifth  section  enacts  '-that  sections  16  and  36  in 
each  township  shall  be,  and  the  same  are  hereby  reserved,  for  the 
purpose  of  being  applied  to  schools  in  the  said  territory ;"  that  is 
to  say,  the  Territory  of  New  INIexico ;  and  the  sixth  reserves  a 
quantity  of  land  equal  to  two  townships,  for  a  university  there. 

The  fourth  section,  therefore,  as  the  reader  will  have  noted,  is 
interposited  between  sections  which  relate  exclusively  to  the 
Territory  of  New  Mexico,  though  it.  itself,  does  not  in  terms  so 
exclusively  relate.  The  fifth  section,  also,  as  he  will  have  noted, 
makes  a  reservation  for  schools  ;  a  matter  which  the  foui'th  section 
in  some  way  apparently  had  also  legislated  upon.  Then  came  a 
seventh  section,  enacting  '-that  any  of  the  lands  not  taken  under 
the  provisions  of  this  act"  are  subject  to  the  operation  of  the  pre- 
emption act  of  4th  September,  1841  (5  Stat,  at  Large.  456),  [an 
act  which  by  its  tenth  section  authorizes  certain  persons  to  enter 
one  hundred  and  sixty  acres  at  the  minimum  price,  and  enacts — 

"That  no  lands  on  which  are  situated  any  known  salines  or  mines  shall 
Tje  liable  to  entry  under  and  by  virtue  of  the  provisions  of  this  act."] 

Section  eight  authorizes  the  surveyor  general  to  ascertain  the 
origin,  nature,  character,  and  extent  of  all  claims  to  lands  under 
the  laws,  usages,  and  customs  of  Spain  and  Mexico ;  and  lands 
covered  thereby  are  to  be  reserved  from  sale. 

Section  nine  gives  the  Secretary  of  the  Interior  power  to  "  issue 
all  needful  rules  and  regulations  for  fully  carrying  into  effect  the 
several  provisions  of  this  act.'' 

Then  comes  for  the  first  time,  in  a  section  ten,  a  specific  refer- 
ence to  Nebraska.  This  tenth  section  authorizes  the  appointment 
of  surveyors  general  for  Nebraska  and  Kansas,  with  the  usual 


Morton  y.  Nebraska.  45 

powers  and  obligations  of  snch  officers.  It  authorizes  them  to 
locate  their  offices  at  certain  places,  &c. 

The  eleventh  section  directs  surveys  in  the  said  territories. 

The  twelfth  subjects  "all  the  lands  to  which  the  Indian  title 
has  been  or  shall  be  extinguished  within  said  Territories  of  Kansas 
and  Nebraska  to  the  operations  of  the  pre-emption  act  of  4th 
September,  1841  ;"  the  pre-emption  act  mentioned  above  in  the 
seventh  section.  And  the  thirteenth  makes  two  new  land  districts, 
authorizes  for  these  two  districts  the  appointment  of  registers  and 
receivers,  and  concludes  the  statute  with  an  enactment  thus  : 

''And  the  President  is  hereby  authorized  to  cause  the  surveyed  lands 
to  be  exposed  to  sale,  from  time  to  time,  in  the  same  manner  and  upon  the 
same  terms  as  the  other  public  lands  of  the  United  States.'''' 

Whether,  therefore,  this  section  four,  interposited  as  it  is  between 
sections  relating  exclusively  to  New  Mexico,  did,  notwithstanding 
its  general  language,  bear  on  the  Territory  of  Nebraska,  was  one 
question  raised  by  the  plaintiff"  in  the  case,  who  denied  that  it  did 
or  could.  He  asserted  that  it  meant  "'none  of  the  foregoing 
provisions."  &c. ;  that  is  to  say,  the  provisions  in  section  two 
about  the  donation  of  land. 

The  State,  on  the  other  hand,  insisting  that  it  did  apply  to 
the  other  two  territories  mentioned  in  subsequent  sections  of 
the  act.  asserted  also  that  whether  it  did  or  did  not  was  unimpor- 
tant, since  by  the  twelfth  section  the  lands  in  Nebraska  were 
subjected  to  the  provisions  of  the  pre-emption  act  of  1841,  which 
exempted  "  all  knoivn  salines  ;"  within  which  class,  as  it  happened, 
those  in  question  came. 

The  State,  however,  relied  also  on  two  other  acts  subsequent 
to  that  already  set  forth,  of  Jvlj  22,  1854.     The  acts  were  thus  : 

1st.  An  act  of  the  3d  of  March,  1857  (11  Stat,  at  Large,  186), 
"  to  establish  three  additional  land  districts  in  the  Territory  of 
Nebraska." 

This  act  rearranged  the  land  districts  of  Nebraska,  authorized 
the  appointment  of  officers  for  them,  and  by  one  section  enacted — 

"That  the  President  is  hereby  authorized  to  cause  the  public  lands  in 
said  districts  to — with  the  exception  of  such  as  may  have  been  or  may  be 
reserved  for  other  purposes — be  exposed  to  sale  in  the  same  manner  as  other 
public  laiids  of  the  United  States." 

2d.  An  act  of  the  19th  of  April,  1864  (13  Stat,  at  Large,  47), 
"  to  enable  the  people  of  Nebraska  to  form  a  constitution  and 
State  government,  and  for  the  admission  of  such  State  into  the 
Union,"  &c. 


46  Morton  v.  Nebraska. 

This  act  enacts — 

''Skction  11.  'rii.at  all  salt  ppnns:?  within  said  State,  not  exceeding 
twelve  in  nxunber,  with  six  sections  of  land  adjoining,  or  as  contiguons 
as  iiiaj^  be  to  each,  shall  l)e  granted  to  said  State  for  its  vise ;  the  said  land 
to  be  selected  by  the  governor  thereof,"  ika. 

Under  this  act  (after  the  admission  of  Nebraska  as  a  State  into 
the  Union),  its  governor  made  a  selection  of  twelve  salt  springs, 
the  ones  now  in  qnestion  being  of  the  nnmber. 

This  act.  however,  contained  a  i)roviso,  which  the  plaintiffs 
conceived  covered  the  present  case,  and  destroyed  the  value  to 
the  State  (if  it  had  an}')  of  the  main  enactment.  The  proviso 
was  thus  : 

"  Provider}^  That  no  salt  spring  or  lands,  the  right  whereof  is  now 
vested  in  any  individual  or  individuals,  shall,  by  this  act,  be  granted  to 
said  State." 

It  may  here  be  remarked  that  the  plaintiffs  had  obtained  certifi- 
cates of  entry  for  the  lands  in  controversy,  and  patents  for  them 
had  been  issued.  The  patents  were  transmitted  from  the  General 
Land  Office  at  Washington  to  the  local  office  in  Nebraska.  Before 
their  delivery,  however,  the  Commissioner  of  the  General  Land 
Office,  ascertaining  that  the  lands  patented  were  saline  lands, 
and  not  agricultural,  recalled  the  patents  and  canceled  the 
location. 

The  court  below  gave  judgment  for  the  State.  From  that 
judgment  the  other  side  brought  the  case  here. 

The  case  teas  thoroughly  tceli  argved  by  Mr.  Montgomery  Blair, 
for  the  plaintiff  in  error,  and  by  Messrs.  William  Lawrence,  of 
Ohio,  jR.  H.  Bradford,  and  E.  R.  Hoar,  contra,  for  the  State  or  its 
tenants. 

.  In  behalf  of  the  plaintiffs  in  error  (plaintiffs  also  below),  it  was 
argued  that  the  act  of  July  22d,  1854,  though  purporting  to  be 
one  statute,  and  in  form  such,  was  oliviously  in  fact  two  statutes  ; 
the  first  statute  coming  to  the  tentii  section,  and  relating  exclu- 
sively to  New  Mexico  ;  the  other,  running  from  the  beginning  of 
that  tenth  section  to  the  end  of  the  thirteenth,  and  relating  exclu- 
sively to  Kansas  and  Nel^raska.  The  case  was  the  case  of  two 
separate  bills,  referring  to  distinct  but  cognate  subjects,  tacked 
together,  and  passed  through  Congress  as  one  statute  ;  a  very 
familiar  case  in  the  legislation  of  Congrsss,  or  of  one  bill,  where 
two  cognate  and  distinct  subjects  were  acted  on  in  one  bill ;  one 


MoRTON'r.  Nebraska.  47 

subject  in  the  first  part,  and  the  other  in  the  last.  Viewing  the 
statute  in  tliis  light,  the  fourth  section  ol"  the  first  act  could  not 
be  made  to  overlap  and  cover  any  portion  of  the  second  act. 

But,  if  this  were  not  the  obvious  history  or  character  of  the 
statute,  the  language  of  the  fourth  section  is  not  the  lauguage  of 
"  reservation."  The  word  '•  reserved,"*  or  "  reservation."  does  not 
occur  in  it.  Tlie  section  wixs.  therefore,  to  be  confined  to  operating 
upon  wdiat  immediately  precedes  it ;  that  is  to  say,  it  was  to  be 
read  as  a  i)rohibition  upon  tlie  occupancy  of  the  mineral,  saline 
and  school  lands  of  New  INIexico.  by  settlers,  under  the  donation 
clause  of  the  act,  contained  in  section  two  and  three,  preceding. 
New  Mexico,  in  1854,  was  a  distant,  and,  agriculturally  consid- 
ered, a  sterile  territory,  though  one  having  very  rich  mines  and 
salines.  The  object  of  Congress  was  to  invite  agricultural  settlers 
into  it.  Donations  of  agricultural  lands  to  such  persons  were 
requisite  to  secure  this  object,  and  even  such  donations  hardly 
secured  it. 

But  donations  of  the  invaluable  mineral  lands  and  salines 
there,  were  not  at  all  requisite  to  invite  thither  the  enterprizing 
miner  and  salt  maker.  These  persons  would  go  there  if  they 
could  purchase  at  private  sale,  or  lease  the  mines  or  salines. 
Congress,  therefore,  would  have  been  without  excuse  in  giving 
away  these  mines  and  salines. 

The  fourth  section  is.  therefore,  not  to  be  regarded  as  a  reserva- 
tion at  all.  ])ut  as  a  provision  withdrawing  mines,  salines,  and  the 
other  sorts  of  land  named  in  it,  from  the  operation  of  the  dona- 
tion clauses  preceding  it. 

Any  other  construction  of  the  section  makes  the  statute  tautol- 
ogous.  The  section,  it  will  be  noted,  operates,  in  whatever  way 
it  does  operate,  on  school  lands  as  much  as  on  salines.  If  it  is 
to  be  taken  as  a  reservation,  operating  over  subsequent  parts  of 
-the  act — a  reservation,  generally,  on  school  lands — then,  as  to 
New  Mexico,  it  makes  the  identical  enactment  which  is  made  in 
the  fifth  section.  This,  as  to  that  act,  is  a  reductio  ad  absurduvi. 
While  a  similar  sort  of  demonstration  appears  in  regard  to  the 
territories  of  Nebraska  and  Kansas,  wlien  you  advert  to  tlie  fact 
revealed  by  a  reference  to  the  statute  book,  that  a  previous  act 
(10  Stat,  at  Large,  283,  289).  the  act  of  May  30th,  1854,  "  to 
organize  the  Territories  of  Nebraska  and  Kansas,"  by  section 
sixteen  and  thirty-four,  reserves  school  lands  in  almost  identical 
language  for  them.     (The  language  is,  in  the  case  of  each  territory  : 


48  Morton  v.  Nebraska. 

"Sections  numbered  10  and  3G  in  each  township  in  said  territory, 
shall  be  and  the  same  are  hereby  reserved  for  the  purpose  of  being 
applied  to  schools  in  said  territory.") 

The  learned  counsel  argued  further,  that  the  proviso  in  the 
eleventh  section  of  the  act  of  April  11th,  1884,  was  a  plain  recog- 
nition of  a  vested  right — one  made  by  its  own  patent — in  the 
plaintiff. 

They  argued  also  that  there  being  no  exhibition  or  evidence 
of  salines  apparent  in  the  receiver's  general  plats,  no  knowledge 
of  any  was  properly  fixed  on  the  plaintiff,  and  that  the  patents 
having  once  pnssed  the  seals  of  the  General  Land  Office  at  Wash- 
ington, the  subsequent  revocation  was  void.  The  plaintiffs  were 
thus  possessed  of  a  legal  title,  and  had  a  right  to  recover  in 
ejectment. 

Mr.  Justice  Davis  delivered  the  opinion  of  the  court. 

The  policy  of  the  government  since  the  acquisition  of  the 
Northwest  Territory  and  the  inauguration  of  our  land  system, 
to  reserve  salt  springs  from  sale,  has  been  uniform. 

The  act  of  18th  May,  1796  (1  Stat,  at  Large,  464),  the  first  to 
authorize  a  sale  of  the  domain  ceded  by  Virginia,  is  the  basis  of 
our  present  rectangular  system  of  surveys.  That  act  required 
every  surveyor  to  note  in  his  field-book  the  true  situation  of  all 
mines,  salt  licks,  and  salt  springs  ;  and  reserves  for  the  future 
disposal  of  the  United  States  a  well  known  salt  spring  on  the 
Scioto  river,  and  every  other  salt  spring  which  should  be  dis- 
covered. 

These  reservations  were  continued  by  the  act  of  May  10th.  1800 
(2  Stat,  at  Large,  73),  which  created  laud  districts  in  Ohio,  with 
registers  and  receivers,  and  authorized  sales  by  them  ;  the  pre- 
ceding act  having  recognized  the  governor  of  the  Northwest 
Territory  and  the  Secretary  of  the  Treasury  as  the  agents  for  the 
sale  of  the  lands. 

And  the  same  policy  was  observed  when  provision  was  made  in 
1804  for  the  disposal  of  the  lands  in  the  Indiana  Territory  (embrac- 
ing what  is  now  Illinois  and  Indiana.)  (2  Stat,  at  Large,  277.)  It 
was  then  declared  "that  the  several  salt  springs  within  said  terri- 
tory, with  as  many  contiguous  sections  to  each  as  shall  be  deemed 
necessary  by  the  President,  shall  be  reserved  for  the  further 
disposal  of  the  United  States." 

Without  referring  particularly  to  the  different  acts  of  Congress 


Morton  v.  Kebraska.  49 

on  the  subject,  it  is  enouirli  to  say  tliat  all  tlie  salines  in  the  V'ir- 
ij;inia  cession  were  reserved  from  sale  and  afterwards  granted  to 
the  several  States  embraced  in  the  ceded  territory.  Congress,  in 
the  disposition  of  the  public  lands  in  the  ^Mississippi  Territory 
(2  Stat,  at  Large.  o48  :  8  Stat,  at  Large.  48'J).  and  in  the  Louisi- 
ana purchase,  presierved  the  policy  which  it  had  applied  to  the 
country  obtained  from  Virginia.  Over  all  the  territory  acquired 
from  France  the  general  land  S3'stera  was  extended.  The  same 
rules  which  were  prescribed  by  law  for  the  survey  and  sale  of 
lands  east  of  the  Mississippi  River  were  transferred  to  this  new 
acquisition.     (2  Stat,  at  Large.  324.) 

At  the  first  sale  of  lands  in  this  region  which  the  President  was 
authorized  to  make,  salt  springs  and  lands  contiguous  thereto 
were  excepted.  (2  Stat,  at  Large,  301.)  And  this  exception  was 
continued  when,  in  IHll.  a  new  land  district  was  created.  Prior 
to  this  time  no  portion  of  the  country  north  of  the  State  of  Louisi- 
ana liad  been  brought  into  market. 

The  act  of  March  3d.  18n.  authorized  this  to  be  done,  but  the 
President,  in  offering  the  lands  for  sale,  was  directed  to  except 
salt  springs,  lead  mines,  and  lands  contiguous  thereto,  which  were 
reserved  for  the  future  disposal  of  the  States  to  be  carved  out  of 
this  immense  territory,  wiiich  included  the  present  State  of 
Nebraska.  (2  Stat,  at  Large.  665.  §  10.)  And  so  particular  was 
Congress  not  to  depart  from  this  policy,  that  in  giving  lands,  in 
1815.  to  the  sufferers  by  the  New  Madrid  earthquake,  every  lead 
mine  and  salt  spring  were  excluded  from  location.  Indeed,  in  all 
the  acts  creating  new  land  districts  in  the  territory  now  occupied 
by  the  State  of  Arkansas  and  Missouri,  the  manner  of  selling  the 
public  lands  is  not  changed,  nor  is  a  sale  of  salines  in  any  instance 
authorized.  On  the  contrary,  they  incorporate  the  same  reserva- 
tions and  exceptions  which  are  contained  in  the  act  of  March  3d. 
1811.  In  all  of  them  the  act  of  18th  May.  1796.  is  the  rule  of 
conduct  for  all  surveyors  general  and  their  deputies,  as  the  act 
of  10th  May.  1800.  is  the  rule  for  all  registers,  requiring  them  to 
exclude  from  sale  all  salt  springs,  with  the  sections  containing 
them. 

In  this  state  of  the  law  of  saline  reservations  the  act  of  22d 
July,  1854,  was  passed.  It  is  by  no  means  certain  that  the  act 
of  March  3d,  1811.  did  not  work  the  reservation  of  every  saline 
in  the  Louisiana  purchase  ;  but  without  discussing  this  point,  it 
is  enough  to  say  that  the  act  of  1854  leaves  no  doubt  of  the  inten- 

4 


50  Morton  v.  Nebraska. 

tion  ol'  Congress  to  extend  to  the  territory  embraced  by  tlie  States 
of  Kansas  and  Neliraska  the  same  system  that  had  been  ap])lied 
to  the  rest  of  the  I^ouisiana  pnrehase.  There  was  certainly  no 
reason  wliy  a  long  established  policy  which  had  jiermeated  the 
lan(i  system  of  the  conntry  shonld  l)e  abandoned  ;  on  the  contrary, 
there  was  every  inducement  to  continue  for  the  benefit  of  the 
States  thereafter  to  be  organized  the  policy  which  had  prevailed 
since  the  first  settlement  of  the  Northwestern  Territory.  In  the 
admission  of  Ohio  and  other  States  Congress  had  made  liberal 
grants  of  land,  including  the  salt  springs.  This  it  was  enabled 
to  do  by  reserving  these  springs  from  sale.  AVithout  this  reserva- 
tion it  is  plain  to  be  seen  there  would  have  l)een  no  springs  to 
give  away,  for  every  valuable  saline  deposit  would  have  been  pur- 
chased as  soon  as  it  was  oifered  for  sale.  An  intention  to  abandon 
a  policy  which  had  secured  to  the  States  admitted  before  1854 
donations  of  great  value  cannot  be  imputed  to  Congress  unless 
the  law  on  the  sul)ject  admits  of  no  other  construction. 

But  the  law  of  1854  (10  Stat,  at  Large.  308),  instead  of  mani- 
festiuo-  an  intention  to  abandon  this  policy,  shows  a  purpose  to 
continue  it.     It  was  the  first  law  luider  which  lands  were  surveyed 
in  Nebraska,  offered  at  public  sale,  and  so  made  subject  to  private 
sale  by  entry.     By  it  surveyors  general  for  New  Mexico  and  for 
Kansas  and  Nebraska  were  appointed,  with  the  usual  powers  and 
duties  of  such  otHcers  ;  and.  although  there-are  provisions  relating 
to  New  Mexico  applicable  to  that  territory  alone,  yet  the  leading 
purpose  of  tMs  act  was  to  bring  into  market  as  soon  as  practicable 
the  lands  of  the  United  States  in  all  of  these  territories.     In  New 
Mexico  this  could  not  be  done  as  soon  as  in  Kansas  or  Nebraska. 
on  account  of  the  policy  adopted  of  donations  to  actual   settlers 
who  should  remove  there  before  the   1st  of  January.  1858.  and 
because  of  the  necessity  of  segregating  the  Spanish  and  Mexican 
claims  from  the  mass  of  the  public  domain.     For  this  reason, 
doubtless,  local  land  offices  were  not  created  in  New  Mexico,  but 
they  were  in  Kansas   and  Nebraska,  and  registers  and  receivers 
appointed,  with  the  powers  and  duties  of  similar  officers  in  other 
land  offices  of  the  United  States  :  and  the  President  was  author- 
ized to  cause  the  lands  when  siirveyed  to  be  exposed  to  sale,  from 
time  to  time,  in  the  same  manner  and  upon  the  same  terms  and 
conditions   as  the  other  public  lands  of  the  United  States.     If 
there  were  no  other  provisions  in  the  law  than  we  have  enumerated, 
we  should  hesitate  to  say.  in  view  of  the  limitation  on  sales  pre- 


Morton  v.  Nebraska.  51 

scribed  by  law  wherever  public  lands  had  been  offered  for  sale, 
that  they  did  not  of  themselves  work  a  reservation  of  tlie  land  in 
controversy.  In  conductino-  the  public  sales  the  register  always 
reserved  salines,  as  it  was  his  duty  to  do,  when  marked  on  the 
plats,  and  this  was  never  omitted  except  by  the  neglect  of  the 
surveyors  general  or  their  deputies.  But  the  fourth  section  of  the 
act  removes  all  doubt  upon  that  subject.  That  section  declares 
that  none  of  the  provisions  of  this  act  shall  extent  to  mineral  or 
school  lands,  salines,  military  or  other  reservations,  or  lands  set- 
tled on  or  occupied  for  purposes  of  trade  and  commerce. 

It  is  contended  that  this  section  applies  to  the  donations  con- 
ceded in  the  preceding  sections  to  actual  settlers  in  New  Mexico. 
But  why  make  this  restriction?  To  do  it  would  require  the  im- 
portation of  the  word  (foregoing),  so  that  the  section  would  read, 
none  of  the  (foregoing)  provisions  shall  extend  to  salines  or  mineral 
lands.  Tliere  is  no  authority  to  make  this  importation,  and  in 
this  way  subtract  from  the  general  words  of  the  section.  The 
language  of  the  section  is  imperative,  and  leaves  no  room  for  cor.- 
struction.  Besides,  why  should  an  intention  be  imputed  to  Con- 
gress to  exclude  actual  settlers  from  saline  lands  but  leave  them 
open  to  private  entry  by  speculators?  The  legislation  upon  the 
subject  of  public  lands  has  always  favored  the  actual  settlers,  but 
the  construction  contended  for  would  discriminate  against  them, 
and  in  favor  of  a  class  of  persons  whose  interests  Congress  has 
never  been  swift  to  promote.  Apart  from  this,  however,  the  pur- 
pose which  Congress  had  in  view  is  to  be  found  in  the  unbroken 
line  of  policy  in  reference  to  saline  reservations  from  1798  to  the 
date  of  this  act.  To  perpetuate  this  policy  and  apply  it  equally 
to  all  the  lands  of  the  three  territories  was  the  controlling  con- 
sideration for  the  incorporation  of  the  section,  and,  although  the 
words  of  the  section  are  loose  and  general,  their  meaning  is  plain 
enough  when  taken  in  connection  with  the  previous  legislation 
on  the  subject  of  salines.  It  cannot  be  supposed,  without  an 
expressed  declaration  to  that  effect,  that  Congress  intended  to 
permit  the  sale  of  salines  in  territories  soon  to  be  organized  into 
States,  and  thus  subvert  a  long-established  policy  by  which  it  had 
been  governed  in  similar  cases.  If  anything  w^ere  needed  to  show 
that  the  fourth  section  did  reserve  salines  from  sales,  it  can  be 
foimd  in  the  act  3d  of  March.  1857  (11  Stat,  at  Large.  186).  re- 
arranging the  land  districts  in  Nebraska.  This  act  excepts  from 
sale  such  lands  "  as  may  have  been  reserved."     This  is  a  declara- 


52  Morton  v.  Nebraska. 

tion  that  lands  had  beeu  reserved,  and  obviously  it  is  a  legislative 
construction  of  the  fourth  section  of  the  act  of  1854,  for  nowhere 
else,  except  by  implication,  had  tliere  been  reservations  of  any  sort 
in  the  Territory  of  Nebraska. 

Besides  this,  the  Nebraska  enabling  act  of  April  10th,  1864 
(13  Stat,  at  Large,  47),  affords  still  further  evidence  that  the  act 
of  1854  was  intended  to  reserve  salines.  The  purpose  of  reserv- 
ing them  was  to  preserve  them  for  the  use  of  the  future  States, 
and  no  vState  had  been  organized  without  a  grant  of  salt  springs. 
In  some  of  the  States,  the  grant  was  of  all  within  their  bounda- 
ries, but,  on  the  admission  of  Missouri,  and  since,  the  number 
was  limited  to  twelve.  This  number,  with  a  certain  quantity  of 
contiguous  lands,  were  granted  to  Nebraska  on  her  admission. 
In  doing  this,  Congress  must  have  assumed  that  the  springs  had 
been  reserved  from  sale,  for,  if  this  had  not  been  done,  the 
presumption  is.  there  would  have  l>een  nothing  for  the  grant  to 
operate  upon. 

It  may  be  true  that  lands  only  fit  for  agriculture  will  remain  a 
long  time  unentered,  but  this  would  never  be  the  case  with  lands 
whose  surface  was  covered  over  with  salt.  It  would  be  an  idle 
thing  to  make  a  grant  of  such  lauds,  if  there  had  been  a  previous 
right  of  entry  conceded  to  individuals.  This  was  in  the  mind  of 
Congress,  and  induced  the  reservation  in  the  act  of  1854,  by 
means  of  which  Nebraska  could  be  placed  on  an  equal  footing 
with  other  States  in  like  situation. 

But  it  is  said  that  the  locations  in  question  are  ratified  by  the 
proviso  to  the  section  granting  the  salt  springs.  This  proviso 
was  as  follows  :  •'  Provided,  that  no  salt  spring  or  lands,  tlie 
right  whereof  is  notv  vested  in  any  individual  or  individuals,  or 
which  hereafter  shall  be  confirmed  or  adjudged  to  any  individual 
or  individuals,  shall,  by  this  act,  be  granted  to  said  State." 

This  provision,  with  an  unimportant  change  in  phraseology, 
was  first  introduced  into  the  enabling  act  for  Missouri  (3  Stat,  at 
Laro-e,  547,  §  6),  and  exactly  similar  provisions  with  the  one  in 
question  were  inserted  in  the  acts  relating  to  Arkansas  and 
Kansas.  (5  Stat,  at  Large,  58  ;  12  Stat,  at  Large,  126.)  The  real 
purpose  of  the  proviso  is  to  be  found  in  the  situation  of  the 
country  embraced  in  the  Louisiana  purchase.  The  treaty  of 
Paris,  of  April  30th,  1803,  by  which  the  "  province  of  Louisiana  " 
was  acquired,  stipulated  for  the  protection  of  private  property. 
This  comprehended  titles  which  were  complete,  as  well  as  those 


Morton  v.  Nebraska.  53 

awaiting  completion  [SonUtrd  v.  United  States,  4  Peters,  all),  and 
Congress  adoi)ted  the  appi'opriate  means  for  ascertaining  and 
confirming  them.  They  were  numerous,  and  of  various  grades. 
and  covered  town  sites  and  every  species  of  land.  In  Missouri, 
as  the  records  of  this  court  show,  they  were  quite  extensive,  and 
when  slie  was  admitted  into  the  Union  many  of  these  titles  were 
perfect,  and  still  a  large  number  imperfect.  In  this  condition  of 
things.  Congress  thouglit  proper,  in  granting  the  salt  springs  to 
the  State,  to  say  that  no  salt  springs,  the  right  ichereof  noto  is  or 
shall  be  confirmed  or  adjudged  to  any  individual,  shall  pass  under 
the  grant  to  the  State.  Whether  this  legislation  was  necessary  to 
save  salt  springs  claimed  under  the  French  treaty,  it  is  not 
important  to  determine,  but  manifestly  it  had  this  purpose  in 
view,  and  nothing  more.  It  could  not  refer  to  salt  springs  not 
thus  claimed,  because  all  entry  upon  them  was  unlawful  on 
account  of  previous  reservation.  It  speaks  of  confirmations 
which  had  been  made,  and  those  which  were  awaiting  govern- 
mental action,  and  in  this  condition  were  all  the  titles  the  United 
►States  were  bound  to  protect. 

Although  the  words  employed  in  the  first  division  of  the  proviso 
to  the  saline  grant  to  Nebraska  are  not  the  same  as  those  used  in 
the  IMissouri  grant,  they  mean  the  same  thing.  There  can  be  no 
difference  lietween  a  right  which  has  ]>een  confirmed  and  one 
which  is  now  vested.  Both  are  perfect  in  themselves,  and  refer 
to  completed  claims,  while  the  last  division  in  each  proviso 
has  reference  to  claims  in  course  of  completion  but  not  finally 
passed  upon.  This  proviso  can  have  little  significance  in  the 
enabling  act  of  Nebraska,  nor  indeed  in  many  other  enabling  acts, 
but  Congress  doubtless  thought  proper  to  introduce  it  out  of  the 
superabundance  of  caution,  as  there  could  be  no  certainty  that  in 
purchased  or  conquered  territory,  however  remote  from  settlement, 
there  might  not  be  private  claims  protected  by  treaty  stipulations 
to  which  it  would  V)e  applicable.  It  cannot  be  invoked,  however, 
for  the  .protection  of  these  plaintiffs.  When  a  vested  right  is 
spoken  of  in  a  statute,  it  means  a  right  lawfully  vested,  and  this 
excludes  the  locations  in  question,  for  they  were  made  on  lands 
reserved  from  sale  or  entry.  If  Congress  had  intended  to  ratifj^ 
invalid  entries  like  these,  they  would  have  used  the  language  of 
ratification.  Instead  of  doing  this,  the  language  actxially  employed 
negatives  any  idea  that  Congress  intended  to  give  validity  to 
any  unauthorized  location  on  the  public  lands. 


54  Morton  v.  Nebraska. 

The  pre-emption  act  of  the  4th  of  Septein])er.  1841  (5  Stat,  at 
Large.  456),  declares  that  '■  no  lands  on  which  are  situated  any 
knoivn  salines  or  mines  shall  be  liable  to  entry ;"'  differing  in  this 
respect  from  the  acts  of  1798  and  1854,  which  reserve  every  "  salt 
spring"  and  '"salines."  The  salines  in  the  case  were  not  hidden 
as  mines  often  are,  but  were  so  incrusted  with  salt  that  they 
resembled  "  snow-covered  lakes,"  and  were  consequently  not  sub- 
ject to  pre-emption.  Can  it  be  supposed  that  a  privilege  denied  to 
pre-emptors  in  Nebraska  was  conceded  in  the  act  of  1864  to 
persons  less  meritorious  ? 

It  appears  by  the  record,  that  on  the  survey  of  the  Nebraska 
country,  the  salines  in  question  were  noted  on  the  field-books,  but 
these  notes  were  not  transmitted  to  the  register's  general  plats, 
and  it  is  argued  that  the  failure  to  do  this  gave  a  right  of  entry. 
But  not  so,  for  the  words  of  the  statute  are  general  and  reserve 
from  sale  or  location  all  salines,  whether  marked  on  the  plats  or 
not. 

What  effect  the  statute  might  have  on  salines  hidden  in  the 
earth,  not  known  to  the  surveyor  or  the  locator,  but  discov- 
ered after  entry,  may  become  a  question  in  another  case.  It 
does  not  arise  in  this.  Here,  the  salines  were  not  only  noted  on 
the  field-books,  but  were  palpable  to  the  eye.  Besides  this,  the 
locators  of  the  warrants,  before  they  made  their  entries,  were  told 
of  the  character  of  the  lauds.  Indeed  it  is  quite  clear  that  the 
lands  were  entered  solely  on  account  of  the  rich  deposits  of  salt 
which  they  were  supposed  to  contain. 

It  does  not  strengthen  the  case  of  the  plaintiffs  that  they 
obtained  certificates  of  entry,  and  that  patents  were  subsequently 
issued  on  these  certificates.  It  has  been  repeatedly  decided  by 
this  court  that  patents  for  lauds  which  have  been  previously 
granted,  reserved  from  sale,  or  appropriated,  are  void.  {Polk  v. 
Wendell,  9  Cranch.  99;  Minter  v.  Crommeliii,  18  Howard,  88  ; 
Reichart  v.  Felps,  6  Wallace,  160.  The  executive  officers  have  no 
authority  to  issue  a  patent  for  the  lands  in  controversy,  because 
they  were  not  subject  to  entry,  having  been  previously  reserved, 
and  this  want  of  power  may  be  proved  by  a  defendant  in  an 
action  at  law.     {Minter  v.  Crommelin,  siqira.) 

Judgment  affirmed. 


Easton  v.  Salisbury.  55 

Ai/roN  K.   Kastox.   plaintitf  in   error,  r.  Thomas   L.  Salisbt'ky. 
Docembsr  Term,  1858.  -21  Howard,  42a ;  3  Miller,  72. 
.][i.'<sf)iirt'  Land  Lav — Spanish   Grants. 

1.  The  United  .States,  by  various  acts  of  Congress,  reserved  from  sale  or 

other  disposition,  lands  to  which  claims  had  been  set  up  under  Spanish 
and  French  grants  in  the  Louisiana  jjiu'chase  ;  but  from  the  years 
182i»  to  1832,  these  reservation  acts  were  annulled  or  inoperative. 
In  1830,  the  concession  under  which  defendant  held  or  claimed, 
was  confirmed  by  an  act  of  Congress.  Held,  that  a  location  by 
plaintiff  of  a  New  Madrid  certificate  on  this  land  in  1818,  and  a 
patent  issued  thereon  in  1827,  were  void,  because  at  both  these  dates 
it  was  reserved  by  act  of  Congress,  and  the  action  of  tlie  land  officers 
was  without  authority. 

2.  'I'liat  the  faihn-e  to  renew  or  keep  alive  this  reservation  fi-om  1829  to 

1832,  did  not  make  valid  tlie  title  of  Easton,  which  was  void  before. 

WiUT  of  error  to  the  Supreme  Court  of  Missouri.  The  case  is 
stated  in  the  opinion. 

Mr.  Gi!>sf)ii  and  Mr.  Gavnhlp  for  plaintiff  in  error:  Mr.  En:in(j 
for  defendant. 

Mil.  .IrsTKE  jNIcLean  delivered  the  o})inion  of  the  court. 

This  was  a  writ  of  error  to  the  Supreme  Court  of  the  State  of 
^Missouri.. 

The  parties  ao;reed  as  to  the  facts  in  this  case,  in  order  that  the 
l)oints  of  law  miszht  be  ruled  by  the  court. 

On  the  Dth  of  July.  1811,  there  were  confirmed  to  James  Smith, 
b}-  the  commissioners  for  the  adjustment  of  titles  to  land  in  the 
Territory  of  IMissouri,  lots  nine  and  ten  (9  and  10),  containing 
two  arpens  of  land,  iu  the  village  of  Little  Prairie,  in  the  countj^ 
of  New  INIadrid,  State  of  Missouri.  Afterwards  these  lots,  while 
still  owned  by  said  Smith,  were  materially  injured  by  earthquakes, 
and  proof  therecjf  was  made  before  the  recorder  of  land  titles 
at  St.  Louis,  on  the  16th  of  November.  1815  ;  whereupon,  there 
was  issued  by  said  recorder,  to  said  James  Smith,  a  certificate  of 
new  location  (commonly  called  a  New  INIadrid  certificate),  num- 
bered 1;VJ.  On  the  22d  of  October.  1816,  said  Smith  and  wife 
conveyed  to  Rufus  Easton  the  said  two  arpens  in  Little  Prairie, 
and  assigned  to  him  the  right  to  locate  other  lands  under  said 
certificate  in  lieu  of  the  land  so  injured,  and  also  conveyed  to 
said  Easton  the  land  that  might  be  located  by  means  of  said 
certificate.  On  the  16th  of  November.  1816,  Easton  gave  notice 
to  the  Surveyor  General  of  said  Territory  of  INIissouri  of  the  loca- 


56  Easton  v.  Salisbury. 

ton  of  said  certificate  on  a  tract  of  land  al)out  two  miles  west  of 
the  city  of  St.  Louis,  and  demanded  a  survey  thereof.  In  March, 
1818.  a  survey  was  made,  by  direction  of  the  surveyor  general, 
in  pursuance  of  said  selection,  and  was  duly  returned  and 
approved  by  said  surveyor  general ;  said  survey  is  numbered 
2,491,  and  the  land  thereby  designated  embraces  the  land  in 
controversy,  and  is  within  8t.  Louis  township,  in  8t.  Louis 
county,  Mo.  By  virtue  of  the  premises.  Easton  held  said  land, 
claiming  the  same  until  1826,  when  he  conveyed  the  same  to 
William  Russell.  On  the  28th  day  of  May,  1827.  the  United 
States  issued  a  patent  on  said  location  for  said  land  to  James 
Smith,  or  his  legal  representatives.  On  the  19th  of  January. 
1839,  William  assigned  and  conveyed  all  his  interest  in  said 
land  to  J.  G.  Easton.  who,  on  the  18th  of  March.  1845,  conveyed 
and  assigned  the  same  to  plaintiff.  Defendant  is  in  possession  of 
the  land  described  in  the  petition,  and  the  same  is  within  the 
boundaries  indicated  by  said  survey  and  patent. 

On  the  20th  of  January,  1800,  a  concession  was  made  by  the 
Spanish  lieutenant  governor  to  one  Mordecai  Bell,  of  three 
hundred  and  fifty  arpens  of  land,  including  the  premises  in 
controversy.  The  representatives  of  Mordecai  Bell,  on  the  29th 
of  June,  1808,  presented  the  claim  for  said  land,  together  with  a 
descriptive  plat  of  survey  thereof,  to  the  board  of  commissioners 
for  the  adjustment  of  land  titles  in  the  Territory  of  Missouri. 
The  documents  showing  said  claim,  and  the  derivative  title  from 
Mordecai  Bell,  were  duly  recorded  in  1808.  by  the  recorder  of 
land  titles  for  the  Territory  of  Missouri.  And  on  the  4th  day  of 
July,  1836,  the  United  States  confirmed  said  claim,  according  to 
said  plat  of  survey,  to  the  legal  representatives  of  M.  Bell:  a 
survey  of  said  confirmation  was  made  by  authority  of  the  United 

States  in .  and  is  numbered  3,026.     Said   survey  embraces 

the  land  in  dispute  ;  and  all  the  title  of  the  confirmee,  by  the 
act  of  1836.  is  in  the  defendant.  The  sm-vey  numbered  2.491. 
and  also  the  patent  dated  28th  of  May,  1827,  are  in  due  form  of 
law ;  but  defendant  does  not  admit  the  authority  of  the  officers 
of  the  United  States  to  make  the  one  or  issue  the  other,  nor  that 
the  same  were  made  or  issued  under  any  law.  It  is  admitted 
that  the  land  in  controversy  is  worth  more  than  two  thousand 
dollars  ;  that  if  the  court  should  be  of  opinion  that  the  plaintiff  is 
entitled  to  recover,  it  is  agreed  that  the  damages  shall  be  fixed  at 
one  cent,  and  the  monthly  value  of  the  premises  at  one  dollar. 


Easton  v.  Salisbury.  57 

Either  party  is  at  lil.erty  to  turn  this  case  into  a  bill  of  excep- 
tions, and  thereon  prosecute  a  writ  of  error,  or  take  an  ai)pcal  to 
the  .Supreme  Court  of  the  State  of  Missouri,  or  of  the  United 
vStates.  rt  is  admitted  that  survey  No.  3,026  was  made  under 
the  authority  of  the  United  States,  but  the  plaintiff  may  dispute 
the  power  of  the  United  States  as  regards  both  the  confirmation 
of  1836  and  the  survey  No.  3,026. 

It  is  admitted  that  the  plaintiff  had.  at  the  commencement  of 
this  suit,  all  the  title  that  was  invested  in  said  James  Smith,  or 
his  representatives.  V)y  the  New  Madrid  location  and  patent  above 
mentioned. 

It  will  l)e  observed  that  this  controversy  arises  between  a  New 
Madrid  title  and  a  Spanish  concession.  A  holder  of  a  New 
Madrid  certificate  had  a  right  to  locate  it  on  any  of  the  public 
lands  which  had  been  authorized  to  be  sold.  This  claim  came 
into  the  hands  of  Alton  R.  Easton.  the  plaintiff  in  error.  It  was 
surveyed  in  March.  1818.  and  the  28th  of  May.  1827.  the  United 
vStates  issued  a  patent  to  James  Smith,  or  his  legal  representatives. 

From  1808  to  the  2oth  of  :May.  1829.  reservations  were  made, 
from  time  to  time,  to  satisfy  certain  claims,  but  from  that  time 
they  ceased,  until  renewed  by  the  act  of  the  !»th  of  July.  1832. 
Durino;  this  period,  it  is  understood  l)y  the  plaintifl'  in  error,  the 
-•land  in  question  was  subject  to  be  disposed  of  to  any  person, 
or  in  any  manner,  and  was  then  open  to  entry  or  location.  And 
it  is  urged  that  the  plaintiff  had  the  right,  during  this  time,  to 
perfect  his  title." 

The  President  of  the  United  States  has  no  right  to  issne  patents 
for  land,  the  sale  of  which  is  not  authorized  hj  law.  In  the  case 
of  StofMard  v.  Chambers.  (2  How..  318).  it  is  said  :  '-The  location 
of  Chambers  was  made  on  lands  not  liable  to  be  thus  appropri- 
ated, but  expressly  reserved ;  and  this  was  the  case  when  his 
patent  was  issued.'"  Had  the  entry  been  made  or  the  patent 
issued  after  the  26th  of  ]May.  1829,  when  the  reservation  ceased, 
and  before  it  was  revived  by  the  act  of  1832.  the  title  of  the 
defendant  could  not  be  contested. 

Nothing  was  done  to  give  Easton"  s  title  validity,  from  the  ces- 
sation of  the  reservation,  in  1829.  until  its  revival  in  1832.  His 
entry  was  made  in  1818.  and  on  the  28th  of  May.  1827.  his  patent 
was  issued.  The  land  located  and  patented,  having  l>een  reserved, 
was  not  liable  to  be  appropriated  by  his  patent.  Wliether  the 
withdrawal  of  the  patent  might  have  been  procured,  or  a  new  one 


58  Van  Reynlhjan  v.  Bolton. 

instituted,  it  is  not  necessary  to  inquire.  Xo  such  attempt  was 
made. 

But  it  seems  by  tlie  act  of  tlie  26th  of  April.  1822.  it  was  pro- 
vided that  all  warrants  nnder  the  New  Madrid  act  of  the  l.')tli  of 
February.  1815,  whicli  shall  not  be  located  within  (me  year,  shall 
be  lield  null  and  void. 

This  law  is  decisive  upon  this  point :  all  New  Madrid  warrants 
not  located  within  one  year  from  the  26th  of  April.  1822,  are  null 
and  void.  Smith's  or  Eastons  certificate  for  the  New  Madrid 
claim  was  void,  and  also  his  patent  when  issued,  under  the  para- 
mount claim  of  Bell,  whose  title  was  confirmed  by  the  act  of  the 
4th  of  July,  18oo.  Bell  made  the  conveyance  to  Mackey.  not 
havino-  the  leo;al  title  ;  but  when,  under  the  act  of  1836.  the  report 
of  tlie  commissioners  was  confirmed  to  Bell  and  his  legal  represen- 
tatives, the  legal  title  ^■ested  in  him.  and  inured,  by  way  of 
estoppel,  to  the  grantee,  and  those  who  claim  by  deed  under  hira. 
{Stoddard  v.  Chavibers,  2  How.,  317.) 

There  was  no  period  from  the  entry  and  patent  of  the  New 
Madrid  claim  in  which  that  claim  was  valid.  The  location  was 
not  only  voidable,  but  it  was  absolute^  void,  as  it  was  made 
on  land  subject  to  a  prior  right.  And  under  the  act  of  1822.  all 
New  Madrid  warrants  not  located  within  a  year  from  that  date, 
were  declared  to  be  void. 

Whether  we  look  at  the  confirmatory  act  of  1836,  which  vested 
the  title  in  the  confirmee,  or  to  the  New  Madrid  title  asserted 
against  it.  it  is  clear  that  the  New  INIadrid  title  is  without  validity, 
and  that  the  fee  is  vested  in  the  grantee  of  Bell. 

Note. — A  New  Madrid  certificate  could  not  be  located  on  the  Hot 
Springs  Reservation  in  Arlvansas.     7'he  Hot  Springs  Cases,  2  Otto,  698. 


Van  Reynegan  v.  Bolton. 

October  Term,  1877. — 5  Otto,  33. 

1.  ITiider  the  Mexican  law,  when  a  grant  of  land  is  made  b.y  the  govern- 
ment, a  formal  deliverj'  of  possession  to  the  grantee  by  a  magistrate 
of  the  vicinage  is  essential  to  the  complete  investiture, of  title.  'I'his 
proceeding,  called  in  the  language  of  the  country,  the  delivery  of 
juridical  possession,  involves  the  establisliment  of  the  boundaries  of 
the  land  granted  when  there  is  any  uncertainty  with  respect  to 
them.  A  record  of  the  proceeding  is  preserved  by  the  magistrate. 
and  a  copy  delivered  to  tlie  grantee. 


Van  Reynegan  v.  Bolton.  59 

2.  Unless  the  decree  of  the  tribunals  of  the  United  States,  conlinainu-  a 
claim  andersuch  a  orant,  otherwise  limits  the  extent  or  the  form  of 
the  tract,  the  boundaries  thus  established  should  control  the  officers 
of  the  United  States  in  survejung  the  land. 

:i.  A  survey,  bj'  a  surveyor  general  of  the  United  States,  of  a  claim  tinis 
confirmed,  is  inoperative,  until  finally  approved  by  the  !>and  Depart- 
meijt  at  Washington. 

4.  Where  a  quantity  of  land  in  Califoi-nia  was  granted  by  the  Mexican  (\ 
government  within  a  tract  embracing  a  larger  amount,  in  the  pos-  J 
session  of  which  tract  the  grantee  Avas  placed,  he  is  entitled  to  retain 
such  possession  until  that  quantity  is  segregated  from  the  tract  by 
the  oflicers  of  the  government  and  set  apart  to  him  ;  he  may  main- 
tain ejectment  for  the  whole  tract,  or  any  portion  of  it,  against 
parties  in  possession  claiming  under  the  pre-emption  laws  of  tlie 
United  States. 

.1.  Lands  claimed  under  Mexican  grants  in  California  are  excluded  from 
settlement  under  the  pre-emption  laws,  so  long  as  the  claims  of 
the  grantees  remain  undetermined  by  the  tribunals  and  oflicers  of 
the  United  States. 

Ekkok  to  tlie  C'ircnit  Court  of  the  United  States  for  the  District 
of  California. 

The  facts  are  stated  in  the  opinion  of  the  court. 

Submitted  on  printed  arguments  by  the  plaintifl's  in  error,  and 
by  Mr.  B.  S.  Brools  for  the  defenc^lant  in  error. 

Mr,  Justice  Field  delivered  the  opinion  of  the  court. 

This  is  an  act  of  ejectment  for  the  possession  of  a  tract  of  land 
situated  in  the  county  of  Marin,  in  the  State  of  California.  The 
plaintiff  traces  title  to  the  demanded  premises  from  the  Mexican 
government  through  a  grant  made  to  one  John  Reed,  in  1834; 
and  confirmed  by  the  tribunals  of  the  United  States.  The  defen- 
dants, against  Avhom  judgment  was  recovered,  held  separate  par- 
cels of  the  premises,  claiming  to  be  rightfully  in  possession  under 
the  pre-emption  laws  of  the  United  States. 

It  appears  from  the  findings  of  the  court  that  in  1834  the  Mexi- 
can governor  of  California,  Jose  Figueroa,  granted  to  Reed  a 
tract  of  land  known  as  Corte  Madera  del  Presidio,  bounded  by 
the  mission  of  San  Rafael  and  the  i:»ort  of  San  Francisco,  the 
quantity  being  specified  in  the  grant  as  "one  square  league,  a 
little  more  or  less,  as  explained  by  the  map  attached  to  the  pro- 
ceedings" (expediente.)  In  the  following  year  possession  of  the 
tract  was  delivered  to  the  grantee  by  the  proper  Mexican  officials, 
and  from  that  time  he  continued  in  its  possession  and  enjoyment 


60  Van  Reynegan  v.  Bolton. 

until  his  deatli.  The  demanded  premises  are  a  parcel  of  this  tract. 
In  1852  the  heirs  of  Reed  presented  their  claim  under  the  grant 
for  confirmation  to  the  Board  of  Land  Commissioners  for  the 
settlement  of  land  titles  in  California,  created  by  the  act  of  March 
S,  1851.  and  in  1854,  by  a  decree  of  the  board,  the  claim  was  con- 
firmed. On  appeal  to  the  district  court  this  decree  wds  affirmed. 
No  further  proceedings  appear  to  have  been  prosecuted  by  the 
government,  and  the  confirmation  thus  became  final. 

The  grant  is  not  set  forth  in  the  record,  but  we  must  presume 
that  it  was  in  the  ordinary  form  of  grants  made  by  former  gover- 
nors of  California,  under  the  Mexican  colonization  law  of  1824, 
as  under  no  other  law  were  those  governors  empowered  to  make 
grants  of  the  public  domain.  Those  grants  were  sometimes  of 
tracts  designated  by  well-defined  boundaries,  sometimes  of  a 
specified  quantity  of  land,  lying  within  exterior  boundaries,  em- 
bracing a  greater  amount,  and  sometimes  of  places  by  name,  where 
these  were  well  known,  and  thus  capable  of  ready  identification. 
All  of  them  were  made  subject  to  the  approval  of  the  assembly  of 
the  department,  and  until  they  received  such  approval  the  estate 
granted  was  liable  to  be  defeated.  And  when  the  a))proval  was 
obtained,  there  was  another  proceeding  to  be  taken  which  was 
essential  to  the  complete  investiture  of  title,  and  that  was  a  formal 
delivery  of  possession  of  the  property  by  a  magistrate  of  the  vicin- 
age5..called  in  the  language  of  the  country  the  delivery  of  juridical 
possession.  This  proceeding  involved  the  establishment  of  the 
boundaries  of  the  tract  when  there  was  any  uncertainty  respecting 
them  :  if  these  were  designated  in  the  grant,  it  required  their  ascer- 
tainment and  identification  ;  if  they  were  not  thus  designated,  it 
required  the  measurement  of  the  quantity  granted  and  its  segre- 
gation from  the  public  domain.  The  regulations  prescribed  by 
law  for  the  guidance  of  the  magistrate  in  these  matters  made  it 
his .  duty  to  preserve  a  record  of  the  various  steps  taken  in  the 
proceeding,  to  have  the  same  attested  by  the  assisting  witnesses, 
and  to  deliver  an  authentic  copy  to  the  grantee. 

Ordinarily  the  boundaries  thus  established  would  be  accepted 
as  conclusive  by  our  government.  Unless  there  is  something  in 
the  decree  of  confirmation  otherwise  limiting  the  extent  or  the  form 
of  the  tract,  they  should  control  the  oflficers  of  the  United  States 
in  making  their  surveys.  It  was  so  held  by  this  court  in  Graham 
V.  United  States.  4  Wallace,  259,  and  in  Pico  v.  United  States.  5 
Wallace,  536. 


Van  Reynegan  v.  Bolton.  61 

In  the  case  at  bar.  the  sur\  eyor  general  for  California  disregarded 
the  boundaries  established  upon  the  juridical  possession  delivered 
to  the  grantee.  He  proceeded  upon  the  conclusion  that  the  con- 
firmees were  restricted  1)v  the  decree  to  one  square  league,  to  be 
measured  out  of  the  tract  within  those  boundaries,  whicli  exceeded 
that  amount  by  about  fifteen  hundred  acres.  Whether  the  terms 
of  the  decree  justified  his  conclusion  is  a  question  upon  which  it 
is  unnecessary  for  us  to  express  an  opinion.  That  is  a  question 
which  must  in  the  first  instance  be  determined  by  the  land  depart- 
ment in  carrying  the  decree  into  execution  by  a  survey  and 
patent.  It  is  sufficient  for  the  present  case  that  the  survey  made 
was  contested  by  the  confirmees,  and  the  contest  was  undeter-  ^j 
mined  when  this  action  was  tried.  Until  finally  approved,  the  survey  I 
could  not  impair  their  right  to  the  possession  of  the  entire  tract 
as  delivered  by  the  former  government  to  the  grantee  under  whom 
they  claim.  Until  then  it  was  inoperative  for  any  purpose.  Even 
if  the  limitation  to  one  square  league  should  ultimately  be  held 
correct,  that  square  league  might  be  located  in  a  ditferent  portion 
of  the  tract  by  direction  of  the  land  department,  to  which  the 
supervision  and  correction  of  surveys  of  private  land  claims  are 
entrusted.  The  confirmees  could  not  measure  off  the  quantity  for 
themselves,  and  thus  legally  segregate  it  from  the  balance  of  the 
tract.  The  right  to  inake  the  segregation  rested  exclusively  with 
the  government,  and  could  only  be  exercised  by  its  officers.  Until 
they  acted  and  effected  the  segregation  the  confirmees  were  inter- 
ested in  preserving  the  entire  tract  from  waste  and  injury  and 
in  improving  it,  for  until  then  they  could  not  know  what  part 
might  be  assigned  to  them.  Until  then  no  third  person  could 
interfere  with  their  right  to  the  possession  of  the  whole. 

No  third  person  could  be  permitted  to  determine  in  advance  of 
such  segregation  that  any  particular  locality  would  fall  within  the\ 
surplus,  and  thereby  justify  his  intrusion  upon  it  and  its  deten-\ 
tion  from  them.  If  one  person  could  in  this  way  appropriate  a 
particular  parcel  to  himself,  all  persons  could  do  so,  and  thus  the 
confirmees  would  soon  l)e  stripped  of  the  land  which  was  intended  . 
by  the  government  as  a  donation  to  its  grantee,  whose  interests 
they  have  acquired,  for  the  benefit  of  parties  who  were  never  in 
its  contemplation.  If  the  law  were  otherwise  than  as  stated,  the 
confirmees  would  find  their  possessions  limited,  first  in  one  direc- 
tion, and  then  in  another,  each  intruder  asserting  that  the  parcel 
occupied  by  him  fell  within  the  surplus,  until  in  the  end  they 


62  Chotard  v.  Pope. 

would  be  excluded  from  the  entire  tract.  {Conuvell  v.  Culver,  16 
Cal.,  429:  ReiJjf  v.  Heish.  1«  LI..  1()H  ;  Mahoney  v.  Van  WinMe, 
21  /(/.,  552.) 

The  defendants  acquired  no  rights  as  pre-emptioners  under  the 
^\  laws  of  the  United  States.  Lands  ^lainied  under  Mexican  grants 
^  I  in  California  are  restricted  from  settlement  so  long  as  the  claims 
of  the  grantees  remain  undetermined.  (10  Stat..  246.)  Their 
possession,  therefore,  was  that  of  simple  intruders  and  trespassers 
without  color  of  right.  (For  the  final  decision  of  the  Land  De- 
partment upon  the  siirvey  made,  see  Copp's  Public  Land  Laws. 
534_o40.)  Judgment  affirmed. 


Note. — Upon  a  private  land  claim  being  finally  rejected  under  the  act 
of  March  3,  18.il,  the  land  became  subject  to  pre-emption  entry  from  the 
date  of  such  rejection  without  being  restored  in  any  manner  by  the  com- 
missioner.    Rush  V.  Casey.,  ;59  Cal.,  ;^3n ;  McGary  v.  Hastings^  39  Cal..  360. 


Chotakd  and  others  v.  Pope  and  anotiiei;. 

January  Term,  1S-J7.— 12  Wlieaton,  oSfi;  7  T'lirtis,  376. 

An  authority  "'to  enter"  a  certain  quantity  of  land  does  not  authorize 
a  location  on  lands  previously  appropriated  or  withdrawn  from  the 
lands  offered  from  sale. 

This  cause  was  argued  by  Livingston  and  Webster  for  the 
plaintiffs,  and  by  the  Attorney  General  and  Sampson  for  the  de- 
fendants. 

Johnson.  J.,  delivered  the  opinion  of  the  court. 

The  rights  of  the  complainants  in  the  land  in  litigation  in  this 
cause  depend  upon  the  construction  of  the  act  of  Congress  of 
May  8.  1820  (6  Stats,  at  Large,  246).  passed  for  the  relief  of  the 
legal  representatives  of  Henry  Willis.  The  words  of  the  act  under 
which  the  complainants  suppose  themselves  entitled  to  relief  are 
these:  "That  the  legal  representatives  of  Henry  Willis  be.  and 
they  are  hereby,  authorized  to  enter,  without  payment,  in  lieu,  &c.. 
in  any  land  office,  &c.,  in  the  States  of  Mississippi  or  Alabama. 
&c.,  a  quantity  of  land  not  exceeding  thirteen  hundred  acres,  &c." 

Under  the  operation  of  these  words,  assuming  the  right  to  ap- 
propriate any  unpatented  land  in  the  two  States,  the  complainants 


Chotard  v.  Pope.  63 

liave  asserted  the  privilege  of  enterina:  a  tract  of  land  which  covers 
the  site  surveyed  and  laid  ofT  for  the  town  of  Claiborne,  in  the 
State  of  Alabama.  The  proper  officers  have  refused  to  issue  the 
ordinary  evidences  of  title,  and  have  gone  on  to  sell  out  the  town 
lots  according  to  law.  This  bill  is  filed  against  the  register  of  the 
land  oflSce,  and  the  purchaser  of  one  of  the  town  lots,  to  compel 
them  to  make  titles  to  comi)lainants. 

On  behalf  of  the  United  States  it  is  contended  that  the  literal 
meaning  of  the  terms  of  the  act  is  limited  and  restrained  by  the 
context,  and  by  considerations  arising  out  of  the  general  system 
of  land  laws  of  the  United  States  into  which  this  act  is  ingrafted  : 
and  that,  so  construed,  the  right  granted  is  limited  to  that  descrip- 
tion of  lands  which  are  liable  to  be  taken  up  at  private  sale. 

And  such  is  the  opinion  of  this  conrt.  That  the  legislature  liad 
distinctly  in  view  its  general  provisions  for  disposing  of  the  unap- 
propriated lands  of  the  United  States  is  distinctly  shown  in  every 
line  of  the  act  under  consideration.  First,  the  party  is  referred 
to  the  land  office  to  make  his  entry  ;  he  is  then  confined  to  the 
locations  designated  by  the  surveys  made  by  the  United  States. 
After  which  it  goes  on  to  enact  that  "the  register  or  registers  of 
the  land  offices  aforesaid  shall  issue  the  necessary  certificate  or 
certificates,  on  the  return  of  which  to  the  General  Land  Office  a 
patent  or  patents  shall  issue."  Here  the  whole  organization  of  the 
land  office  is  brought  into  review  :  and  if.  then,  the  term  -enter" 
can  be  shown  to  be  restricted  and  confined  in  its  application  to  a 
particular  class  or  description  of  lands,  it  will  follow  that  when 
used  in  laws  relating  to  the  appropriation  of  lands  it  must  lose 
its  general  and  original  signification,  and  l)e  confined  to  what  may 
be  called  its  technical  or  legislative  meaning. 

The  term  entry,  as  ap])lied  to  appropriations  of  land,  was 
probably  borrowed  from  the  State  of  Virginia,  in  which  we  find 
it  used  in  that  sense  at  a  very  remote  period.  Many  cases  will 
be  found  in  the  reports  of  the  decisions  of  this  court,  in  which  the 
titles  to  western  lands  were  drawn  in  question,  which  will  show 
liow  familiarly  and  generally  the  term  is  used  by  conrt  and  bar. 
Its  sense,  in  the  legal  nomenclature  of  this  country,  is  now  as 
fixed  and  definite  as  that  of  many  terms  borrowed  from  the  com- 
mon law.  It  means  that  act  by  which  an  individual  acquires  an 
inceptive  right  to  a  portion  of  the  unappropriated  soil  of  the 
country  by  filing  his  claim  in  the  office  of  an  officer  known  in  the 
legislation  of  several  States  by  the  epitliet  of  an  entry -taker,  and 


64  Chotard  v.  Pope. 

corresponding  very  inneli  in  his  functions  with  the  registers  of 
land  offices,  under  the  acts  of  the  United  States.  In  the  natural 
progress  of  language,  the  term  has  been  introduced  into  the  laws 
of  the  United  States,  and  by  reference  to  those  laws  we  think  the 
meaning  of  the  term  will  be  found  to  be  distinctly  confined  to  the 
appropriation  of  lands  under  the  laws  of  the  United  States  at 
private  sale. 

It  is  familiarly  known  that  the  public  lands  ai'e  uniformly  brought 
into  market  in  pursuance  of  a  system  which  commenced  in  the  year 
171)6.  and  was  perfected  about  the  year  1800.  The  lands  are  first 
surveyed,  then  advertised  at  public  auction,  and  then  whatever 
remains  unsold  at  public  auction  is  offered  at  private  sale  to  the 
first  applicant  at  stipulated  prices.  The  act  of  1800  presents  a 
full  view  of  the  course  pursued  on  this  subject,  and  the  7th  sec- 
tion, 2  vStats.  at  Large.  75  (vol.  3,  p.  388)  of  that  act  distinctly 
shows  that  the  right  to  enter  lands  is  confined  to  those  lands  which 
are  offered  at  private  sale.  The  words  enter,  entry,  and  l)ook  of 
entries  will  be  found  in  that  section  all  used,  and  exclusively 
used  with  reference  to  the  appropriation  of  lands  of  that  descrip- 
tion. Now.  no  one  ever  imagined  that,  under  the  general  system, 
the  right  of  appropriation  by  entry  in  the  registers  office  extended 
to  any  appropriated  lands,  however  those  appropriations  were 
legally  made.  The  ideas  on  this  subject  were  so  fixed  in  familiar 
use  that  Coiigress  felt  no  necessity  for  further  precaution  in  legis- 
lating on  this  subject  in  this  instance,  than  what  is  implied  in  the 
use  of  language  belonging  to  their  general  system. 

By  looking  through  the  laws  making  provisions  for  grants  of 
.land  from  the  year  1800  downwards.  Congress  will  be  found  re- 
peatedly using  the  term  entry  in  a  sense  which  leaves  no  doubt  of 
the  description  of  lands  to  which  it  is  applied.  In  the  act  of  the 
3d  March,  1817,  3  Stats,  at  Large,  390  (vol.  6,  p.  286).  entitled 
an  act  allowing  further  time  for  entering  donation  rights  to  lands 
in  tlie  district  of  Detroit,  it  will  be  found  by  comparing  the  title 
with  the  enacting  clause  that  the  sense  in  which  the  term  entrj-  is 
used  is  that  of  filing  a  claim  with  the  register  of  the  land  office. 
But  all  the  previous  laws  on  the  subject  show  that  the  only  lands 
that  could  be  appropriated  by  filing  a  claim  in  the  registers  office 
were  those  which  were  offered  at  private  sale.  In  the  act  of  March, 
1818,  6  Stats,  at  Large.  200  (vol.  6,  p.  260)  for  "authorizing  certain 
purchasers  of  public  lands  to  withdraw  their  entries  and  transfer 
the  moneys  paid  thereon,"  we  find  Congress  familiarly  using  the 


Eldred  v.  Sexton.  65 

term  with  reference  to  the  same  subject,  and  still  more  ex|Dlicitly 
in  the  act  of  March,  1810.  (3  Stats,  at  Large,  526.)  entitled  an  act 
providing  for  the  correction  of  errors  in  making  entries  of  lands 
at  the  land  offices  (vol.  6,  p.  427),  until  finally,  in  the  year  1820, 
the  very  legislature  which  passed  this  act  in  favor  of  the  heirs  of 
Willis  has  furnished  such  explicit  evidence  of  the  meaning  which 
they  attach  to  the  grant  of  a  right  to  enter  as  banishes  every  doubt. 

In  the  2d  and  3d  sections  of  the  act  of  April  24,  1820,  3  Stats, 
at  Large,  566,  (vol.  6,  p.  486),  entitled,  "an  act  making  further 
provisions  for  the  sale  of  public  lands,"  will  be  found  conclusive 
evidence  that  the  right  to  enter  is  identified  with  the  right  to  pur- 
chase at  private  sale,  and  confined  to  the  appropriating  of  such 
lands  as  may  be  legally  appropriated  by  entry  at  the  register's 
oflfice  ;  from  which  are  excluded  all  lands  previously  appropriated, 
whether  by  public  sale,  or  by  being  withdrawn  from  the  mass  of 
lands  oftered  for  sale. 

From  the  earliest  date  of  the  legislation  of  Congress  on  this 
subject,  there  have  been  appropriations  to  the  public  use,  made 
l:>y  withdrawing  from  this  mass  certain  portions  of  territory'  for 
public  seminaries,  towns,  salt  springs,  mines,  and  other  objects  ; 
and  the  particular  land  in  controversy  was  appropriated  under  a 
previous  law,  to  wit,  the  act  of  April.  1820,  for  the  site  of  a  town. 
We  therefore  think  that  it  was  not  included  in  the  right  to  appro- 
priate vested  in  tlie  complainants  under  the  act  on  which  they 
rely. 

Before  dismissing  this  subject,  it  may  be  proper  to  remark  that 
the  question  considered  is  the  only  question  that  was  made  in 
argument.  The  court  have  also  under  consideration  some  points 
arising  on  the  form  of  the  remedy,  and  the  state  of  the  complain- 
ant's right ;  on  which  subjects  the  court  are  to  be  considered  as 
uncommitted  b}^  any  inference  that  may  be  drawn  from  their 
having  disposed  of  the  cause  upon  the  principal  question. 

Decree  (iffinaed,  'with  costs. 


Eldred  v.  Sexton. 
October  Term,  1873.— 19\Vallace,  189. 

The  fundamental  prhiciple  established  by  the  act  of  Congress  of  April 
24th,  1820,  and  since  governing  the  matter  of  sales  of  the  public 
lands,  tliat  private  entries  are  not  permitted  until  after  the  lands 
have  been  exposed  to  public  auction  at  tlie  price  for  wliich  they  are 


66  Eldred  v.  Sexton. 

afterwards  sold,  held  to  bo  applicable  to  a  case— that  of  the  grant 
by  Congress,  June  3d,  1S56,  of  alternate  sections,  designated  by 
odd  numbers,  to  the  State  of  Wisconsin,  for  the  aid  of  the  ( 'liicago 
and  Northwestern  Railway. 

There,  after  tlie  line  of  the  railroad  was  located,  and  the  price  of  sec- 
tions within  six  miles  designated  by  even  numbers,  doubled,  that  is 
to  say,  fixed  at  S'i./iO  per  acre,  and  after  these  were  offered  at  public 
sale  at  Ihat  price,  and  remained  unsold,  so  that  thenceforth  they 
became  open  to  private  entry  at  $2.50,  but  not  at  less,  the  line  of 
the  road  was  changed  by  joint  resolution  of  Congress,  leaving 
outside  of  the  six  miles  limits  certain  of  these  even  sections  ;  the 
joint  resolution  pro^^ding  that  the  even  sections  of  public  lands 
"reserved  to  the  United  States  by  the  act  of  June  3d,  IS.IG  the 
original  grant),  along  the  originally  located  route  of  railroad,  and 
along  ichirh  no  railroad  ha.i  been  coa.-itr acted,  shall  hereof ter  be  sold  at 
$1 .2.")  ^jtr  ucre.'^'' 

Held,  notwithstanding  this  provision,  that  the  "  fundamental  principle  " 
above  spoken  of,  was  of  so  pervading  a  character,  that,  although 
these  sections,  while  within  the  six  miles  limit,  had  been  offered  at 
public  sale  at  $2.50,  and  refused,  they  were  not  open  to  private 
entry  now  that  by  the  change  of  location  they  were  without  that 
limit,  until  they  had  been  offered  for  public  sale  at  61.25  pei  acre, 
and  Iiad  been  left  unsold. 

Error  to  the  Supreme  Court  of  Wisconsin,  the  case  being 
thus  : 

An  act  of  Congress,  approved  April  24th,  1820  (3  Stat,  at 
Large,  566),  laid  down  the  following  general  law  about  the  public 
lands  : 

"The  price  at  which  the  public  lands  shall  be  offered  for  sale  shall  be 
$1.25  an  acre,  and  at  every  public  sale  the  highest  bidder,  who  shall 
make  paj^ment  as  aforesaid,  shall  be  the  purchaser ;  but  no  land  shall 
be  sold,  either  at  public  or  private  sale,  for  a  less  price  than  $1.25  an 
acre ;  and  all  the  public  lands  which  shall  have  been  offered  at  public 
sale  before  the  first  day  of  July  next,  and  which  shall  then  remain 
unsold,  as  well  as  the  lands  that  shall  thereafter  be  oft'ered  at  public 
sale,  .according  to  law,  and  remain  unsold  at  the  close  of  such  public 
sales,  shall  be  subject  to  be  sold  at  private  sale,  by  entry  at  the  land 
oflace,  at  $1.25  an  acre,  to  be  paid  at  the  time  of  making  such  entry  as 
aforesaid,"  &c. 

This  statute  being  in  force  as  the  general  regulation  about 
public  lands,  Congress,  by  an  act  of  June  3d.  1856  (11  Stat,  at 
Large,  20),  in  order  to  aid  the  construction  of  a  line  of  railroad  from 
Fond  du  Lac,  at  the  south  end  of  Lake  Winnebago,  in  the  State 
of  Wisconsin,   northerly  to   the    north   line    of   the    said    State 


y 


Eldred  v.  Sexton.  67 

granted  to  the  said  State  of  AYisconsin  every  alternate  section  of 
land  designated  by  odd  numbers,  for  six  sections  in  width,  on 
each  side  of  the  road.  In  pursuance  of  a  well  settled  policy  of 
the  government  on  the  subject,  the  price  of  the  even  numbered 
sections  remaining  to  the  United  States  was  doubled,  and  the  act 
declared  : 

"  Nor  shall  any  of  said  lands  become  subject  to  private  entry  until  the 
same  shall  have  first  been  offered  at  public  sale,  at  tlie  increased  price." 

Tliis  land-grant  by  the  legislature  of  Wisconsin,  became  vested 
in  the  Chicago  and  Northwestern  Railway  Compan^^  which  had, 
before  the  3d  of  May,  1859,  located  the  line  of  its  road,  so 
that  certain  lands,  the  subject  of  the  controversy  in  this  case, 
were  within  the  prescribed  limits.  Up  to  that  day  they  had  never 
been  brought  into  market,  but,  upon  that  day,  by  proclamation  of 
the  President,  they  were  offered  for  sale  at  $2.50  per  acre.  Not 
being  sold,  they  remained  subject  to  private  entry  at  that  sum. 
A  change  in  the  route  of  the  road  being  desirable.  Congress  was 
asked  to  authorize  it,,  and  this  was  done  bj^  the  joint  resolution 
of  April  25th.  1862.     (12  Stat,  at  Large,  618.) 

The  first  section  of  the  resolution  authorized  a  change  of  the 
location  of  the  line  of  the  railroad. 

The  third  and  fourth  sections  of  the  resolution  were  thus  : 

"  Section  3.  The  Secretary  of  the  Interior  is  hereby  authorized  to 
cause  all  even  sections  or  parts  of  even  sections  of  public  laud  that  may 
be  brought  within  six  miles  of  the  new  line  of  railroad,  to  be  sold  at 
tlie  same  price  and  In  the  same  manner  as  those  have  been  upon  the 
originally  located  route.  And  all  purchasers,  or  their  heirs  or  assigns, 
witiiiu  the  six  mile  limits  of  the  said  originally  located  route,  who  shall 
be  more  than  six  miles  from  the  new  line,  and  who  have  paid  the  sum 
of  S2..')0  an  acre,  shall  have  the  right  either  to  exchange  their  locations 
upon  the  line  as  first  established,  to  the  new  line,  upon  the  same  terms, 
in  like  quantities,  and  in  the  same  manner  as  on  the  line  first  estab- 
lished ;  or,  at  tlieu-  option,  to  enter,  without  further  payment,  anywhere 
within  the  Menasha  land  district,  in  the  State  of  NN'isconsin,  an  addi- 
tional quantity  of  public  lands  subject  to  private  entry,  at  $1.2o  an  acre, 
equal  to  the  quantity  entered  by  them  at  $2. 50  an  acre,  so  that  the 
lauds  originally  entered  Ijy  them  shall  thus  be  reduced  to  the  rate  of 
$1.2-5  an  acre. 

'•Section  4.  The  even  sections  of  public  lands  reserved  to  the  United 
States  by  the  aforesaid  act  of  June  3d,  18of;,  along  the  originally  located 
route  of  railroad,  north  of  tlie  said  town  of  Appleton,  and  along  whicli 
no  railroad  has  been  constructed,  shall  liereafter  he  sold  at  $1.25  an  acrc:" 

A  change  in  the  route  of  the  road   was  made  which  left  the 


68  Eldrbd  v.  Sexton, 

lands  now  in  question  outside  of  the  new  limits.  After  this,  but 
before  any  public  offer  of  the  lands  for  sale  at  the  reduced  price^ 
one  Eldred  applied  to  the  register  and  receiver  of  the  local  land 
office,  and  in  1865  and  1866  was  allowed  to  enter  them  at  the  price 
of  $1.25  per  acre.  The  entries,  however,  were  subsequently  can- 
celed by  the  Commissioner  of  the  General  Land  Office,  on  the 
ground  that  when  they  were  made  the  lands  were  not  subject  to 
private  entry  at  such  minimum  price  :  and  this  decision,  on  ap- 
peal, was  affirmed  by  the  Secretary  of  the  Interior.  On  the  can- 
cellation of  the  entries  the  lands  were  offered  at  public  sale  at  the 
minimum  price  of  $1.25  an  acre,  and  not  being  sold  were  subse- 
quently purchased  at  private  entry  at  that  price  by  one  Sexton, 
to  whom  patents  were  issued  in  1870.  Hereupon  Eldred  filed  a 
bill  in  one  of  the  State  courts  of  Wisconsin  to  have  Sexton  de- 
clared a  trustee  for  him,  and  to  have  a  surrender  of  the  patents, 
and  conveyance  of  all  Sexton's  rights  to  him. 

The  court  decreed  against  the  complainant,  and  that  decree 
being  affirmed  in  the  Supreme  Court  of  the  State,  the  case  was 
brought  here  by  him  for  review. 

The  sole  question  was  whether  the  action  as  above  stated  of  the 
Commissioner  of  the  General  Land  Office  and  of  the  Secretary  of 
the  Interior  was  correct.  If  correct,  it  was  conceded  that  the 
defendant's  title  obtained  subsequently  could  not  be  impeached. 
If  incorrect,  the  defendant  was  to  be  treated  as  a  trustee  holding 
the  legal  title  for  the  plaintiff.  The  solution  of  the  question  de- 
pended, of  course,  upon  the  effect  to  be  given  to  the  land-grant 
legislation  alreadj'  quoted  for  the  benefit  of  Wisconsin. 

Mr.  J.  P.  C.  Cottrill  for  the  plaintiff  in  error. 

When  and  how  the  public  lands  shall  become  subject  to  private 
entry  at  the  minimum  price  does  not  depend  upon  any  mere  prac- 
tice of  the  land  department  of  the  government,  or  upon  the  "  say 
so"  of  the  public  servants  who  administer  that  department,  but 
depends  upon  the  enactments  of  Congress  ;  and  when  these  enact- 
ments have  been  complied  with  so  that  the  public  lands  once  be- 
come subject  to  private  entry  they  remain  so,  unless  their  con- 
dition is  again  changed  b}^  force  of  law.  There  is  no  discretionary 
power  reposed  in  the  officers  of  the  land  department  by  which  they 
can  say  that  certain  lands  shall  be  in  the  market  subject  to  private 
entry  to-day  and  that  to-morrow  they  shall  not  be. 

Now,  confessedly,  at  the  close  of  the  offer  of  them  at  public 
sale  on  the   3d  of  IMay,  1859,  these  lands  became  and  remained 


Eldred  I'.  Sexton.  69 

subject  to  private  entry  at  the  price  of  $2.00  ;  and  the}'  were  thus 
subject  to  private  entry,  of  course,  at  that  price  when  Congress 
passed  its  explanatory  resolution.  Now.  what  does  that  resolu- 
tion say?  Simply  that  ••they  shall  be  sold  at  $1.25  per  acre." 
Congress  of  course  knew  that  the  even  sections  within  the  six- 
miles  limit  were  in  the  market  subject  to  entry  at  $2.50  an  acre  ; 
and,  having  this  knowledge  before  them,  it  is  but  respectful  to 
that  body  to  infer  that  if  it  had  been  their  intention  to  withdraw 
these  lands  from  market  and  not  to  subject  them  to  private  entry 
until  they  had  again  been  offered  at  public  sale  at  the  minimum  • 
of  $1.25  per  acre,  they  would  have  expressed  such  intention  in 
clear  terms. 

In  the  second  section  of  the  land  grant  act  of  June  3d,  1856. 
they  did  not  leave  it  a  matter  of  doubt  or  construction  as  to 
whether  the  even  sections  within  the  six-mile  limits  of  the  grant 
should  become  subject  to  private  entry,  by  being  first  offered  at 
public  sale  at  the  ordinary  minimum  price  of  $1.25  per  acre,  as 
provided  by  the  general  law,  but  expressly-  enacted  that  they 
should  first  be  offered  at  public  sale  at  the  increased  price. 

The  only  change,  therefore,  produced  upon  these  lands  by  the 
joint  resolution  was,  we  submit,  to  reduce  their  price  from  $2.50 
to  $1.25  per  acre.  In  other  respects  they  stood  in  the  same  con- 
dition and  situation  to  which  they  had  been  brought  by  the  force 
of  other  laws  and  the  acts  of  the  officers  and  agents  of  the  govern- 
ment under  those  laws. 

Suppose  that  prior  to  the  passage  of  the  resolution,  and  while 
the  line  remained  unchanged,  and  while  the  even  sections  within 
six  miles  of  that  line  were  in  the  market  subject  to  private 
entry  at  $2.50  per  acre,  a  person  had  entered  a  quarter-section  of 
land,  and  paid  therefor  $2.50  per  acre.  Now  if,  after  the  passage 
of  the  resolution  and  the  re-location  of  the  line,  this  quarter-section 
was  not  within  the  six  miles  of  the  new  line,  the  person  would, 
under  the  third  section  of  the  resolution,  be  entitled  to  enter 
another  quarter-section  at  $1.25  per  acre.  Now,  suppose  that  he 
actually  entered  the  additional  quarter-section,  what  would  be  the 
practical  result  of  the  transaction  in  reference  to  the  first  entry  ? 
Certainly  that  the  first  quarter-section,  by  virtue  of  the  opera- 
tion of  the  explanatory  resolution,  was  in  effect  entered  at  private 
entry  at  $1.25  per  acre. 

The  theory  of  the  government  in  this  land-grant  legislation  has 
been,  and  is,  that  public  lands  within  six  miles  of  a  railroad  would 


70  Eldred  v.  Sexton. 

be  at  least  doubled  in  value  by  the  location  and  construction  of  a 
road  so  near  tliein,  and  that  such  increased  value  was  a  compen- 
sation to  the  government  for  giving  the  alternate  sections  to  aid 
in  the  constructiou  of  the  road.  Hence  the  price  of  $2.50  per  acre 
within  the  six-mile  limits  has  always  been  deemed  the  equivalent 
of  $1.25  without  those  limits.  We  say,  therefore,  that  the  offer  of 
these  lands  at  public  sale  at  the  minimum  price  of  $2.50  an 
acre,  while  they  were  within  the  six-mile  limits,  was  equivalent  to 
an  offer  of  the  same  at  the  price  of  $1.25  when  outside  of  those 
limits.  At  the  public  offer  of  $2.50  per  acre  of  lands  within  the 
six-mile  limits  the  lands  had  been  refused,  and  there  was  no  sense 
in  offering  them,  when  put  by  the  change  outside  the  limits,  at 
$1.25  per  acre.  Practically,  as  we  say,  they  had  been  offered  at 
that  and  refused.  Congress  so  viewed  the  matter,  and  intended, 
we  submit,  that  they  should  not  be  7V-offered.  Nowhere,  in  all  our 
legislation  in  reference  to  the  public  domain,  can  a  law  be  found 
which  requires  lands  that  have  once  become  subject  to  private 
entry,  and  the  price  of  which  may  afterwards  be  changed,  to  be 
again  offered  at  public  sale,  after  the  change  in  price,  before  they 
shall  be  subject  to  private  entry,  or,  in  other  words,  that  a  mere 
change  in  price  withdraws  lands  from  market ;  and  if  any  such 
requirement  exists,  it  is  based  wholly  upon  the  practice  of  the 
land  office ;  a  vicious  practice  as  respects  these  lands,  since  it  is 
arrayed  against  a  positive  enactment  of  Congress  as  expressed  in 
the  explanatory  resolution. 
Mr.  S.  U.  Pinney  contra. 

Mr.  Justice  Davis  deli^'ered  the  opinion  of  the  court. 

It  is  a  fundamental  principle  underlying  the  land  system  of  this 
country  that  private  entries  are  never  permitted  until  after  the 
lands  have  been  exposed  to  public  auction,  at  the  price  for  which 
they  are  afterwards  subject  to  entry. 

They  are  first  surveyed,  then  a  day  is  appointed  for  their 
sale  by  the  President,  which  is  to  be  kept  open  for  two  weeks. 
At  this  sale  they  are  offered  at  a  minimum  price,  and  cannot 
be  sold  for  less,  but  may  be  sold  for  as  much  more  as  any  one 
will  give,  and  what  remains  unsold  at  the  close  of  such  sale  is 
subject  to  entry  at  that  price. 

Tliere  is  an  obvious  reason  for  requiring  a  public  sale  before  leav- 
ing the  lands  open  to  private  entry.  It  is  to  secure  to  all  persons 
a  fair  and  equal  opportunity  of  purchasing  them,  and  to  obtain  for 


i 


Eldred  v.  Sextois!.  71 

the  government  the  benefit  of  competition  in  case  the  lands  shonld 
be  worth  more  than  the  price  fixed  by  Congress.  This  system 
commenced  at  an  early  period  of  onr  history',  and  was  perfected 
in  1820.  For  a  period  of  twenty  years,  beginning  with  the  com- 
mencement of  this  century,  the  public  lands  were  sold  on  credit  at 
not  less  than  two  dollars  an  acre  ;  but  the  mode  of  selling  on 
credit  working  badly,  it  was  in  1820  abandoned,  and  the  price 
reduced  to  $1.25  per  acre.  (2  Stat,  at  Large,  73  ;  3  Stat,  at  Large, 
566.) 

Since  that  time  the  great  body  of  the  public  domain  has  been 
brought  into  market,  after  proper  notice,  at  this  reduced  price,, 
and,  unless  Congress  by  special  act  ordered  otherwise,  private 
entries  have  never  been  allowed  unless  the  land  applied -for  had 
been  previously  offered  at  public  sale  to  the  highest  bidder  at  the 
same  price.  This  has  been  the  established  practice  of  the  land 
office,  sanctioned  by  the  law  officers  of  the  government,  and  recog- 
nized b}'  this  court  as  a  leading  feature  in  our  system  of  land  sale. 
Johnson  v.  Totcsley,  13  Wallace,  88  ;  Chotard  v.  Pope.  12  Whea- 
ton,  588  ;  2  Opinions  of  the  Attorney  Generals,  200  ;  3  Opinions 
of  the  Attorney  Generals,  274  ;4  Id,  167.) 

The  inquiry  arises  whether  Congress  intended  to  change  this 
system  in  the  new  policy  adopted  by  it.  to  aid  States  b}^  grants  of 
lands  to  build  railroads.  This  policy  is  of  comparatively  recent 
■  date,  but  there  is  nothing  that  we  are  aware,  in  any  of  the  various 
acts  on  the  subject,  which  tend  to  show  that  it  was  the  purpose 
of  Congress,  in  its  land-grant  legislation,  to  alter  the  manner  in 
which  the  public  lands  had  been  brought  into  market  and  made 
subject  to  private  entry.  It  is  true  the  minimum  price  of  the 
lands  within  certain  prescril)ed  limits  was  doubled,  on  the  suppo- 
sition that  the  construction  of  the  contemplated  roads  would 
enhance  the  value  of  the  lands  to  such  an  extent  that  the  govern- 
ment  would  be  enabled  to  realize  as  much  for  them  as  if  the  grants 
had  not  been  made,  but  in  all  other  respects  the  general  system 
for  the  disposition  of  public  lands  was  preserved.  It  is  difficult, 
therefore,  to  see  how  the  plaintiff  can  succeed,  unless  the  legisla- 
tion on  which  he  rests  his  title  was  designed  to  be  exceptional, 
which  we  think  was  not  the  case.  The  grant  was  an  ordinary 
one  to  build  a  road  in  Wisconsin,  for  which  a  change  of  route  was 
desirable,  after  the  line  had  been  located.  This  change  was 
authorized  by  Congress,  but  before  the  line  was  re-located  the 
lands  in  question,  being  within  the  six  mile  limit,  had  been  at  a 


72  Eldred  v.  Sexton. 

sold,  were  subject  to  entry  at  that  price,  but  not  at  any  less  sum. 
public  land  sale,  offered  for  sale  at  $2.50  per  acre,  and  not  being 
The  location  of  the  new  route  left  them  outside  of  the  required 
distance,  and  legislation  was  necessary  to  take  them  out  of  the 
condition  of  lands  affected  by  the  construction  of  a  railroad,  and 
to  restore  them  to  the  general  body  of  the  unsold  lands,  so 
that  they  could  be  sold  in  the  same  manner  and  at  the  same 
price  that  the  public  domain  is  usually  subject  to  sale.  This  object 
was  accomplished  by  the  joint  resolution  of  April  2.5th,  1862, 
which  declares  that  "these  lands  should  hereafter  be  sold  at  $1.2.5 
per  acre."  It  is  contended  that  this  declaration  fixed  the  price 
absolutely,  and  subjected  them  to  private  entry  at  that  price, 
without  any  further  proceeding.  This  proposition  is  based  on  the 
idea  that  Congress  intended  to  adopt  a  different  rule  for  the  dis- 
position of  these  lands  from  that  which  had  always  obtained  for 
the  disposition  of  other  public  lands  ;  but  there  is  nothing  in  the 
circumstances  of  this  legislation  which  tends  to  prove  an  inten- 
tional abandonment  of  a  long  existing  policy.  Why  make  an 
exception  in  the  case  of  these  lands  ?  There  was  no  exigency 
requiring  it,  nor  any  reason  to  suppose  that  Congress  had  any 
purpose  to  place  them  on  a  different  footing  from  other  govern- 
ment lands  for  sale  at  $1.25  an  acre.  Such  a  purpose  would 
conflict  with  the  general  land  system,  and  disturb  its  harmonj^ 
and  cannot  be  imputed  to  Congress  in  the  absence  of  an  express 
declaration  to  that  effect.  This  system  required  that  all  lands 
should  be  brought  into  market,  after  proper  notice,  so  as  to  afford 
competition  before  being  subject  to  private  entry. 

It  is  true  the  lands  in  question  were  once  offered  at  public 
sale  at  $2.50  an  acre,  but  the  reason  of  the  rule  required  that 
they  should  be  again  offered  to  the  highest  bidder,  because  their 
condition  as  to  price  had  been  changed,  and  there  had  been  no 
opportunity  for  competition  at  the  reduced  price.  Congress 
meant  nothing  more  than  to  fix  $1.25  as  their  minimum  price,  and 
to  place  them  in  the  same  category  with  other  public  lands 
not  affected  by  land  grant  legislation.  When  they  were  with- 
drawn from  the  operation  of  this  legislation,  and  their  exceptional 
status  terminated,  the  general  provisions  of  the  land  system 
attached  to  them,  and  they  could  not,  therefore,  be  sold  at  private 
entry,  until  all  persons  had  the  opportunity  of  bidding  for  them 
at  public  auction. 

It  follows  that  the  plaintiff's  entries  were  invalid  and  rightly 


The  Yosemite  Valley  Case.  73 

canceled,  because  they  were  made  liefore  the  lands  had  been 
proclaimed  for  sale  at  the  minium  price  of  $1.25  an  acre,  and  that 
the  defendant's  entries  were  in  accordance  with  law.  as  they  were 
located  after  the  lands  had  been  properly  brought  into  market. 

Jii(J(ji)ieiit  Affirmed. 


The  Yosemite  Valley  Case. 

(Ilutchings  V.  Low.) 

December  Term,  1872.-15  Wallace,  77. 

1.  A  party  by  mere  settlement  upon  lands  of  the  United  States,  with  a 

declared  intention  to  obtain  a  title  to  the  same  under  the  pre-emp- 
tion laws,  does  not  thereby  acquire  such  a  vested  interest  in  the 
premises  as  to  deprive  Congress  of  the  power  to  divest  it  by  a  grant 
to  another  party. 

2.  The  power  of  regulation  and  disposition  over  the  lands  of  the  United 

States,  conferred  upon  Congress  by  the  constitution,  only  ceases 
under  the  pre-emption  laws  when  all  the  preliminary  acts  prescribed 
Iby  those  laws  for  the  acquisition  of  the  title,  including  the  payment 
of  the  price  of  the  land,  have  been  performed  by  the  settler.  When 
these  prerequisites  have  been  complied  with  the  settler  for  the  first 
time  acquires  a  vested  interest  in  the  premises  occupied  by  him  of 
which  he  cannot  be  subsequently  deprived.  He  then  is  entitled  to  a 
certificate  of  entry  from  the  local  land  officers,  and  ultimately  to 
a  patent  for  the  land  from  the  United  States.  Until  such  pay- 
ment and  entry  the  pre-emption  laws  give  to  the  settler  only  a  privi- 
lege of  pre-emption  in  case  the  lands  are  offered  for  sale  in  the 
usual  manner ;  tiiat  is,  the  privilege  to  purchase  them  in  that  event 
in  preference  to  others. 

3.  The  United  States  by  the  pre-emption  laws  do  not  enter  into  any 

contract  with  the  settler  or  incur  any  obligation  that  the  land  occu- 
pied by  him  shall  ever  be  put  up  for  sale.  They  simply  declare  by 
those  laws  that  in  case  any  of  their  lands  are  thrown  open  for  sale 
the  privilege  to  purchase  them  in  limited  quantities  at  fixed  prices 
shall  be  first  given  to  parties  who  have  settled  upon  and  improA-ed 
them.  The  legislation  thus  adopted  for  the  benefit  of  settlers  was 
not  intended  to  deprive  Congress  of  the  power  to  make  any  other 
disposition  of  tlie  lands  before  they  are  offered  for  sale,  or  to  appro- 
priate them  to  any  public  use. 

4.  The  case  of  Fn'sblev.   ir/u7/(.ey  {9th  Wallace,  LS7)  affirmed. 

-5.  The  case  of  L;jtle\.  The  Stale  of  Arkamas  (9th  HoAvard,  333)  explained 
and  distinguished  from  the  present  case. 


74  The  Yosemitb  Valley  Case. 

6.  'l"he  act  of  Congress  of  June  30th,  1SG4,  granting  the  Yosemite  Valley 
and  the  Mariposa  Big  Tree  Grove  to  the  State  of  California  passed 
tlie  title  of  tliose  premises  to  the  State,  snbjcot  to  the  trust  specified 
therein,  that  they  should  be  held  for  public  use,  resort,  and  recrea- 
tion, and  be  inalienable  for  all  time. 

Erkor  to  the  Supreme  Court  of  California, ;  the  case  being 
thus  : 

On  the  30th  of  June.  1864,  Congress  passed  an  act,  (13  Stat,  at 
Large.  325).  granting  to  the  State  of  California  the  cleft,  or  gorge, 
in  the  Sierra  Nevada  Mountains,  situated  in  the  county  of  Mari- 
paso  in  that  State,  known  as  the  Yosemite  Valley,  with  its  branches 
and  spurs,  in  estimated  length  fifteen  miles,  and  in  width  one 
mile,  with  the  stipulation  that  the  State  should  accei^t  the  grant 
upon  the  express  condition  that  the  premises  should  be  held  for 
public  use,  resort,  and  recreation,  and  should  be  inalienable  for  all 
time,  except  that  leases  for  portions  of  the  premises  for  periods 
not  exceeding  ten  years  might  be  made,  the  income  derived  there- 
from to  be  expended  in  the  preservation  and  improvement  of  the 
premises,  or  the  roads  leading  thereto.  The  act  provided  that  the 
boundaries  of  the  grant  should  be  established,  at  the  cost  of  the 
State,  by  the  surve3^or  general  of  the  United  States  for  California, 
whose  official  plat,  when  affirmed  by  the  Commissioner  of  the 
General  Land  Office,  should  constitute  the  evidence  of  the  locus, 
extent,  and  limits  of  the  cleft,  or  gorge  ;  and  that  the  premises 
should  be  managed  by  the  governor  of  the  State,  with  eight  other 
commissioners  to  be  appointed  by  him.  who  should  receive  no 
compensation  for  their  services. 

By  the  same  act  Congress  also  granted  to  the  State  the  tract  of 
land  embracing  the  grove  of  mammoth  trees  in  Mariposa,  known 
as  "  the  Mariposa  Big  Tree  Grove."  the  grant  to  be  accepted  upon 
similar  conditions  as  the  grant  of  the  Yosemite  Valley,  and  the 
premises  to  be  held  for  like  public  use,  resort,  and  recreation,  and 
to  be  also  inalienable  for  all  time,  but  with  the  same  privilege  as 
to  leases. 

At  the  first  session  of  the  legislature  of  California,  subse- 
quently held,  an  act  was  passed  by  which  the  State  accepted  the 
grant  thus  made  of  the  Yosemite  Valley  and  Big  Tree  Grove, 
upon  " the  conditions,  reservations  and  stipulations"  contained 
in  the  act  of  Congress,  and  the  governor,  and  eight  commission- 
ers, who  had  previously  been  appointed  by  him  during  the  recess 
of  the  legislature,    were    constituted  a  board  of  commissioners. 


The  Yosemite  Valley  Case.  75 

"  with  full  power  to  manage  and  administer  the  grant  made,  and 
the  trust  created  by  the  act  of  Congress,"  and  to  make  rules  and 
regulations  for  the  government,  improvement,  and  preservation  of 
the  premises.  The  act  also  provided  for  the  appointment,  by  the 
commissioners,  of  a  guardian  of  the  premises,  and  made  it  a 
penal  offence  in  any  one  to  commit,  wilfully,  any  trespass 
thereon,  to  cut  down  or  girdle  the  trees,  to  deface  or  injure  the 
natural  objects,  to  fire  the  wood  or  grass,  or  to  destroy  or  injure 
any  bridge  or  structure  thereon,  or  other  improvement. 

On  the  19th  of  May,  1864,  six  weeks  previous  to  the  passage 
of  the  act  of  Congress  making  the  grant  to  the  State,  Hutchings 
entered  the  Valley  of  the  Yosemite  and  settled  upon  lands 
therein,  with  the  intention,  according  to  his  declarations,  and 
the  findings  of  the  court,  to  acquire  the  title  to  the  same  under 
the  pre-emption  laws  of  the  United  States.  There  were  then  on 
the  premises  a  house,  outhouses,  and  a  fence  inclosing  about 
three  acres.  These  improvements  Hutchings  purchased  of  the 
previous  occupant,  and  he  had  ever  since  resided  upon  the  prem- 
ises, and  had  improved  and  cultivated  them.  The  valley,  at  the 
time,  was  unsurveyed.  and  no  other  acts  than  the  settlement  thus 
made  and  continued  had  ever  been  done  by  him  to  acquire  the 
title,  unless  soliciting  the  State  and  Congress  to  recognize  his 
claim,  can  be  called  such  acts.  At  the  time  of  his  settlement, 
Hutchings  was  possessed  of  all  the  qualifications  required  of 
settlers  under  the  pre-emption  laws  of  the  United  States. 

The  principal  one  of  these  laws,  and  the  one  to  which  all 
subsequent  acts  refer,  is  the  act  of  September  4th.  1841  (5  Stat. 
at  Large,  453),  entitled  "  An  act  to  appropriate  the  proceeds  of 
the  sales  of  the  public  lands,  and  to  grant  pre-emption  rights." 
The  tenth  section  of  this  act  provides  that  any  person,  of  the 
class  designated  therein,  who  shall  make  a  settlement  upon  the 
public  lands,  to  which  the  Indian  title  has  been  extinguished,, 
and  which  has  been  previously  surveyed,  and  shall  inhabit  and 
improve  the  same,  and  shall  erect  a  dwelling  thereon,  shall  be 
authorized  to  enter,  with  the  register  of  the  proper  land  oflfice, 
by  legal  subdivisions,  one  quarter-section  of  land,  to  include  the 
residence  of  the  claimant,  upon  paying  to  the  United  States  the 
minimum  price  of  said  land,  subject  to  certain  specified  excep- 
tions, among  which  is,  that  no  lands  included  in  any  reserva- 
tion, by  any  treaty    law.  or  proclamation  of  the   President,  or 


76  The  Yosemite  Valley  Case. 

reserved  for  salines,  or  for  the  support  of  schools,  or  for  other 
purposes,  shall  be  liable  to  entry. 

By  other  sections,  various  provisions  are  enacted  for  the 
determination  of  conflicting  claims,  and  the  preservation  of 
proofs  of  settlement  and  improvement.  When  all  the  prerequi- 
sites are  complied  with,  and  the  claimant  has  paid  the  price  of 
the  land,  he  is  entitled  to  a  certificate  of  entry  from  the  register 
and  receiver,  and  after  a  reasonable  time  to  enable  the  land 
officers  to  ascertain  whether  there  are  any  su}>erior  clkims,  and 
whether  the  claimant  has  complied,  in  all  respects,  with  the  law, 
he  is  entitled  to  a  patent  of  the  United  States.  (See  opinion  of 
Mr.  Justice  Miller,  9  Wallace,  194.) 

By  the  sixth  section  of  the  act  of  Congress  of  March  3d. 
18.53,  entitled  "  An  act  to  provide  for  the  survey  of  the  pu]>lic 
lands  in  California,  the  granting  of  pre-emption  rights  therein, 
and  for  other  purposes  "  (10  Stat,  at  Large,  246).  all  the  public 
lands  of  the  United  States,  in  California,  whether  surveyed  or 
unsurveyed,  are  made,  with  certain  exceptions,  subject  to  the 
above  act  of  September  4th,  1841,  "  with  all  the  exceptions, 
conditions  and  limitations  therein,"  with  a  proviso  that  when 
unsurveyed  lands  are  claimed  by  pre-emption,  notice  of  the 
claim  shall  be  filed  within  three  months  after  the  return  of  the 
plats  of  the  surveys  to  the  land  offices,  and  proof  and  payment 
shall  be  made  prior  to  the  day  appointed  by  the  President's 
proclamation  for  the  commencement  of  the  sale  including  such 
lands  ;  the  entry  of  such  claims  to  be  made  by  legal  subdivisions, 
according  to  the  United  States  survey ;  and  also  that  settle- 
ment on  unsurveyed  lands  shall  be  authorized  only  where  the 
settlement  is  made  within  one  year  after  the  passage  of  the  act. 
This  last  limitation  was  subsequently  extended,  by  act  of  Con- 
gress, two  years  from  March  1st,  1854.     (10  Stat,  at  Large,  268.) 

In  some  of  the  States  and  Territories,  by  acts  of  Congress, 
settlements  are  authorized  on  unsurveyed  lands,  and  by  the  7th 
section  of  the  act  of  May  30th,  1862.  "to  reduce  the  expenses  of 
the  survey  and  sale  of  the  public  lands  of  the  United  States" 
(12  Stat,  at  Large,  410),  this  privilege  was  extended  to  Cali- 
fornia. 

Under  this  last  act,  Hutchings  conceived  that  he  had  a  right 
to  settle  upon  the  unsurveyed  lands  of  the  United  States  in  the 
Yosemite  Valley,  and  by  the  above  acts  of  1841  and  1853,  could 
acquire,  and  had  acquired,  such  a  vested  interest  in  the  premises, 


The  Yosemite  Valley  Case.  77 

to  the  extent  of  one  hundred  and  sixty  acres,  that  the  United 
States  conkl  not  transfer  tlieir  title  to  tlie  State,  or  dedicate  the 
land  to  any  i)ublic  use.  He  therefore  refused  to  surrender  the 
possession  to  the  commissioners  appointed  b}'  the  State.  The 
defendant  also  refused  to  take  a  lease  from  the  commissioners, 
though  offered  to  him  at  a  mere  nominal  rate  for  ten  years.  They 
accordingly,  in  November,  1867,  brought  the  present  action, 
alleging,  in  their  complaint,  that  the  State  was  owner  in  fee  of 
the  premises,  and  that  they  were  entitled  to  the  possession  as 
commissioners  of  the  State. 

Pending  the  action,  and  on  the  20th  of  February,  1H68,  the 
legislature  of  California  passed  an  act  granting  to  the  defendant 
and  one  Lamon,  each,  one  hundred  and  sixty  acres  of  laud  in  the 
Yosemi^  Valley  ;  the  part  granted  to  the  defendant  containing 
his  improvements  and  the  premises  in  controversy.  The  second 
section  of  the  act  provided  that  the  act  shoiild  take  effect  from 
and  after  its  ratification  by  Congress.  It  had  never  been  thus 
ratified.  A  bill  to  ratify  it  passed  the  House  of  Representatives, 
but  failed  in  the  Senate. 

The  District  Court  of  the  State,  in  which  the  action  was 
commenced,  adjudged  that  the  defendant  was  right  in  his  view  of 
his  interest,  and  accordingly  gave  judgment  in  hi's  favor.  The 
Supreme  Court  of  the  State  reversed  the  judgment,  and  ordered 
judgment  for  the  possession  of  the  premises  in  favor  of  the  com- 
missioners.    The  defendant  now  brought  the  case  here  for  review. 

Mr.  G.  W.  Jidian  for  the  plaintiff  in  error. 

The  question  is  whether  Congress,  in  granting  the  valley  to 
the  State  of  California,  could  divest  the  right  of  Hutchings 
under  the  pre-emption  laws?  In  other  words,  had  Hutchings 
such  a  vested  right  or  interest,  that  Congress  could  not  divest  it 
by  the  grant  of  it  to  another  party? 

The  case  of  Lytle  v.  The  State  of  Arkansas,  (9  Howard,  333), 
is  in  point.  There  Cloyes,  the  pre-emptor,  selected  his  claim 
under  the  act  of  Congress  of  May  2yth,  1830,  authorizing  and 
regulating  pre-emptions.  A  later  act,  dated  June  15th,  1832, 
granted  to  the  Territory  of  Arkansas  one  thousand  acres  for  a 
court-house  and  jail  at  Little  Rock,  including  the  tract  claimed. 
Before  this  grant  the  pre-emption  right  of  Cloyes  had  accrued 
under  the  tict  of  1830,  and  he  had  proved  his  right,  and  done 
ever3rthing  he  could  do  to  perfect  it.     The  court  says  : 

"  By  this  grant  to  Arkansas,  Congress  could  not  have  intended  to 


78  The  Yosemitb  Valley  Case. 

impiiir  vested  riglits  Tlic  grants  of  the  one  tliousand  acres  and  of  the 
othci-  tracts  ninst  be  so  construed  as  not-to  interfere  with  the  pre-emp- 
tion of  ('loyes." 

This  ease  is  referred  to  in  the  case  of  Bernard  v.  Ashley.  (18 
Howard,  43.)     The  conrt  says  : 

"  In  T.ytle's  case  we  declared  that  the  yoccupant  was  wrongfully 
deprived  of  his  lawful  rights  of  entrj^  under  the  pre-emption  laws,  and 
the  title  set  up  nnder  the  selection  of  the  governor  of  Arkansas  was 
decreed  to  CJoyes,  the  claimant ;  this  court  holding  his  claim  to  the  land 
to  have  been  a  legal  right  by  virtue  of  the  occupancy  and  cultivation 
subject  to  be  defeated  only  by  a  failure  to  perform  the  conditions  of  mak- 
ing proof  and  tendering  the  purchase-money." 

This,  it  will  be  seen,  deals  with  the  right  of  pre-emption  as  "  a 
legal  right  by  virtue  of  the  occupancy  and  cultivation"  of  the 
pre-emptor,  •'  subject  to  be  defeated  only  by  a  failure  tc^erform 
the  conditions  of  making  the  proof  and  tendering  the  purchase- 
money." 

The  court  adds  : 

"■  'i'he  claim  of  pre-emption  is  not  that  shadowy  thing  which  by  some 
it  is  considered  to  be.  Until  sanctioned  by  law  it  has  no  existence  as  a 
substantive  right ;  but  when  covered  by  the  law,  it  becomes  a  legal  right, 
subject  to  be  defeated  only  by  a  failure  to  perform  the  conditions 
annexed  to  it.'i 

If  this  is  true  of  Cloyes,  it  must  be  equally  true  of  Hutchings. 
and  he  can  only  lose  his  claim  "  by  a  failure  to  perform  the  con- 
ditions annexed  to  it,"  when  those  conditions  shall  be  tendered 
for  his  performance.  In  giving  the  opinion  in  Lytle  v.  The  State 
of  Arkansas,  the  court  says  : 

"The  adventurous  pioneer,  who  is  found  in  advance  of  our  settlements, 
encounters  many  hardships,  and  not  iinfrequently  dangers  from  savage 
incursions.  He  is  generally  poor,  and  it  is  fit  that  his  enterprise  should 
be  rewarded  by  the  privilege  of  purchasing  the  favorite  spot  selected  by 
him,  not  to  exceed  one  hundred  and  sixty  acres.  That  this  is  the  national 
feeling,  is  shown  by  the  course  of  legislation  for  many  years." 

This  expresses  the  spirit  and  policy  of  the  pre-emption  laws, 
as  they  have  been  understood  by  the  whole  country  till  quite 
recently.  The  pioneer  settler  has  been  treated  as  the  favorite  of 
the  law.  ,  The  court  says  further  : 

"  It  is  a  well-established  principle,  that  when  an  individual,  in  the 
prosecution  of  a  right,  does  everything  which  the  law  requ  res  him  to  do, 
and  he  fails  to  obtain  his  right  by  the  misconduct  or  neglect  of  a  public 
officer,  the  law  will  protect  him.  In  this  case  the  pre-emptive  right  of 
Cloyes  having  been  proved,  and  an  offer  to  pay  the  money  for  the  land 


The  Yosemite  Valley  Case.  79 

claimed  bj^  him,  under  the  act  of  1830,  nothing  more  could  be  done  by 
him,  and  nothing  more  could  be  required  of  him  under  that  act.  And 
subsequently,  when  he  paid  the  money  to  the  receiver,  under  subsequent 
acts,  the  surveys  being  returned,  he  could  do  nothing  more  than  offer 
to  enter  the  land,  which  the  register  would  not  permit  him  to  do.  This 
claim  of  pre-emption  stands  before  us  in  a  light  not  less  favorable  than 
it  would  have  stood  if  Cloyes  or  his  representatives  had  been  permitted 
by  the  land  offices  to  do  what,  in  this  ropect.  was  offered  to  be  done  " 

Cloyes  was  held  excused  on  the  ground  that  he  had  done  every- 
thing in  his  power  to  perfect  his  claim.  Ilutchings  did  the  same. 
Cloyes  had  gone  further  in  complying  with  the  conditions  of  title 
than  Ilutchings  has  done,  l)nt  each  went  as  far  as  he  could,  and 
neither  was  in  default.  The  good  faith  of  the  government  is 
involved  in  both  cases.  There  is  no  justice  in  the  argument 
that  the  pre-eraptor,  after  having  made  valuable  Improvements, 
and  expended  his  money  thereon,  and  complied  with  all  the 
conditions  of  title  which  were  within  his  power,  may  nevertheless 
be  driven  from  his  possession,  his  improvements  confiscated,  and 
the  land  conveyed  to  another,  with  notice  of  all  the  facts,  who 
can  hold  it  discharged  from  all  the  equities  of  the  pre-emptor. 

It  is  conceded  on  all  hands  that  if  a  pre-emptor.  in  addition  to 
the  other  acts  required  of  him,  has  paid  for  the  land,  he  has  ac- 
quired a  vested  right  to  it.  and  the  government  is  bound  to  give 
him  the  title  ;  but  this  concession  yields  the  whole  case.  If  the 
government  is  bound  by  its  good  faith  to  protect  the  settler  at 
one  stage  of  his  claim  and  as  to  one  condition  of  title,  it  is  bound 
to  protect  him  at  all  stages  and  as  to  every  condition.  The  con- 
dition of  final  payment  is  no  more  vital  or  sacred,  either  to  the 
settler  or  the  government,  than  any  of  those  which  precede  it.  In 
the  language  already  quoted.  '•  it  is  fit  that  his  enterprise  should  be 
rewarded  by  the  privilege  of  purchasing  the  favorite  spot  selected 
by  him.  not  to  exceed  one  hundred  and  sixty  acres.'"  Rut  of  what 
value  is  this  "  privilege,"  if  the  settler  holds  it  at  the  mere  will  of 
the  government,  which  may  cut  him  off  at  any  moment?  And 
what  must  be  thought  of  a  government  which  holds  its  individual 
citizens  to  perfect  good  faith  by  compelling  them  to  perform  their 
engagements,  and  yet  violates  its  own  faith  to  the  settler,  that  he 
should  have  a  home  on  its  lands  on  specified  conditions,  with  which 
he  is  ready  and  willing  to  comply?  Nor  is  this  question  answered 
by  saying  that  the  settler  has  the  option  to  abandon  his  pre-emp- 
tion at  any  time,  and  that  the  government,  therefore,  should  be 
equally  free.     The  option  of  the  pre-emptor  is  properly  given  by 


80  The  Yosemite  Valley  Case. 

the  law  ;  for  if  he  al)andons  his  claim,  the  land,  with  the  improve- 
ments made  upon  it,  reverts  to  the  government,  which  loses  nothing. 
The  transaction  has  been  likened  to  a  contract  for  the  sale  of  lauds 
in  which  the  owner  retains  the  title  as  security  for  the  purchase- 
mone3\  On  the  other  hand,  if  the  settler,  after  spending  his  inonej'' 
and  his  time  in  improving  his  pre-emption  and  making  for  himself 
a  home,  as  in  the  present  case,  is  driven  away  by  the  government 
without  any  default  on  his  part,  he  loses  all  unjustl}^  and  is  with- 
out remedy. 

This  case  of  LytUx.  The  State  of  Arhuisas  deserves  particular 
regard,  not  only  because  the  principles  laid  down  in  it  settle  the 
case  under  consideration  in  favor  of  Hu.tchings,  but  because  it 
sustains  the  true  land  policy  of  the  nation,  as  universally  under- 
stood, till  within  a  very  recent  period. 

The  counsel  on  the  other  side  will  rely  on  Frisbie  v.  Whitneyy 
(9  Wallace,  187),  the  only  authority  of  any  federal  court  which 
can  be  cited  in  favor  of  the  doctrine  now  set  up  as  to  the  rights 
of  settlers  under  the  pre-emption  laws.  The  case  is  in  the  face 
of  the  explicit  language  of  the  court  in  the  case  of  Lytle  v.  The 
State  of  ArJamsas,  of  which,  however,  it  takes  no  notice.  It  is 
against  the  current  of  authorities  on  the  question  in  the  federal 
courts,  and  against  the  whole  spirit  and  policy  of  our  land  laws. 
It  refers  to  the  different  sections  of  the  pre-emption  act  of  1841. 
but  takes  no  notice  of  the  judicial  constructions  of  the  act  in 
favor  of  the  rights  of  the  settler  under  that  act.  It  cites  in 
support  of  the  points  affirmed  sundry  opinions  of  attorneys  gen- 
eral and  decisions  of  State  courts,  which  at  the  best  are  not 
binding  and  conclusive  authorities  in  this  court ;  while  it  fails  to 
discuss  or  scarcely  to  refer  to  the  strong  cases  decided  in  the 
federal  courts  in  favor  of  an  opposite  interpretation  of  the  right 
of  pre-emption. 

The  facts  also  of  the  case  of  Whitney  v.  Frisbie,  are  peculiar  ; 
and  the  claim  of  Hutchings  cannot  be  held  as  conclusively  settled 
adversely,  to  our  view,  by  that  single  case. 

Mr.  E.  L.  GooM,  contra. 

Mr.  Justice  Field,  after  stating  the  case,  delivered  the  opin  • 
ion  of  the  court,  as  follows  : 

The  simple  question  presented  for  determination  is  whether  a 
party,  by  mere  settlement  upon  lands  of  the  United  States,  with 
a  declared    intention  to  obtain  a  title  to  the    same  under  the 


The  Yosemite  Valley  Case.  81 

pre-emption  laws,  does  thereby  acquire  such  a  vested  interest  in 
the  premises  as  to  deprive  Congress  of  the  power  to  divest  it  by 
a  grant  to  anotlier  party.  If  such  be  the  effect  of  mere  settlement, 
with  a  view  to  pre-emption,  upon  the  power  of  Congress  to  grant 
the  lands  occupied  to  another  party,  it  must  operate  equally  to 
deprive  Congress  of  the  power  to  reserve  such  lands  from  sale  for 
public  uses  of  the  United  States,  though  needed  for  arsenals,  for- 
tifications, light-houses,  hospitals,  custom-houses,  court-houses, 
or  for  any  other  of  the  numerous  public  purposes  for  which  prop- 
erty is  used  by  the  government.  It  would  require  very  clear 
language  in  the  acts  of  Congress  before  any  intention  thus  to 
place  the  public  lands  of  the  United  States  beyond  its  control  by 
mere  settlement  of  a  party,  with  a  declared  intention  to  purchase, 
could  be  attributed  to  its  legislation. 

The  question  here  presented  was  before  this  court,  and  was 
carefully  considered  in  the  case  of  Frisbie  v.  Whitney,  reported 
in  the  9th  of  Wallace.  And  it  was  there  held  that  under  the 
pre-emption  laws  mere  occupation  and  improvement  of  any  por- 
tion of  the  public  lands  of  the  United  States,  with  a  view  to  pre- 
emption, do  not  confer  upon  the  settler  any  right  in  the  land 
occupied,  as  against  the  United  States,  or  impair  in  any  respect 
the  power  of  Congress  to  dispose  of  the  land  in  anj'  way  it  may 
deem  proper;  and  thattiie  power  of  regulation  and  disposition, 
conferred  upon  Congress  by  the  Constitution,  only  ceases  when 
all  the  preliminary  acts  prescribed  by  those  laws  for  the  acquisi- 
tion of  the  title,  including  the  payment  of  the  price  of  the  land, 
have  been  performed  by  the  settler.  AYhen  these  prerequisites 
have  been  complied  with,  the  settler  for  the  first  time  acquires  a 
vested  interest  in  the  premises  occupied  by  him,  of  which  he 
cannot  be  subsequently  deprived.  He  is  then  entitled  to  a  certifi- 
cate of  entry  from  the  local  land  officers,  and  ultimately  to  a 
patent  for  the  land  from  the  United  States.  Until  such  payment 
and  entry  the  acts  of  Congress  give  to  the  settler  only  a  privi- 
lege of  pre-emption  in  case  the  lauds  are  offered  for  sale  in  the 
usual  manner,  that  is,  the  privilege  to  purchase  them  in  that  event 
in  preference  to  others.  The  United  States  by  those  acts  enter 
into  no  contract  with  the  settler,  and  incur  no  obligation  to  any 
one  that  the  land  occupied  by  him  shall  ever  be  put  up  for  sale. 
They  simply  declare  that  in  case  any  of  their  lands  are  thrown 
open  for  sale  the  privilege  to  purchase  them  in  limited  quantities, 
at  fixed  prices,  shall  be  first  given  to  parties  who  have  settled 

6 


82  The  Yosemite  Valley  Case. 

upon  and  improved  them.  The  legislation  thus  adopted  for  the 
benefit  of  settlers  was  not  intended  to  deprive  Congress  of  the 
power  to  make  anj'^  other  disposition  of  the  lands  before  thej^  are 
offered  for  sale,  or  to  appropriate  them  to  an}'^  public  use. 

The  decision  in  Frishie  v.  Whitney,  was  pronounced  by  a 
unanimous  court,  and  subsequent  reflection  has  satisfied  us  of 
its  entire  soundness.  The  construction  there  given  to  the 
pre-emption  laws  is,  as  there  stated,  in  accordance  with  the  con- 
struction uniformlj^  given  by  that  department  of  the  government 
to  which  the  administration  of  the  land  laws  is  confided,  and  by 
the  chief  law  officers  of  the  government  to  whom  that  department 
has  applied  for  advice  on  the  subject.  It  is  the  only  construction 
which  preserves  a  wise  control  in  the  government  over  the  public 
lands,  and  prevents  a  general  spoliation  of  them  under  the  pre- 
tence of  intended  settlement  and  pre-emption.  The  settler  being 
under  no  obligation  to  continue  his  settlement  and  acquire  the 
title,  would  find  the  doctrine  advanced  by  the  defendant,  if  it 
could  be  maintained,  that  he  was  possessed  by  his  settlement  of 
an  interest  beyond  the  control  of  the  government,  a  convenient 
protection  for  any  trespass  and  waste,  in  the  destruction  of 
timber,  or  removal  of  ores,  which  he  might  think  proper  to 
commit  during  his  occupation  of  the  premises. 

The  argument  of  the  defendant's  counsel,  and  his  criticism  of 
the  decision  in  Frishie  v.  Whitney,  are  founded  upon  a  misap- 
prehension of  the  language  used  in  some  previous  opinions  of 
this  court,  and  particularly^  of  language  used  in  the  opinion  in 
the  case  of  Lytle  v.  The  State  of  Arkansas.  (9  Howard,  333.) 
This  last  case,  and  the  language  there  used,  did  not  escape  the 
attention  of  the  court  in  the  consideration  of  Frishie  v.  Whitney. 
That,  and  other  cases  in  which  the  equitable  rights  of  persons 
claiming  under  the  pre-emption  laws  had  been  protected  against 
the  legal  title  acquired  bj'-  others,  in  disregard  of  their  rights,  were 
cited  b^^  counsel  and  commented  upon  on  the  argument,  as  assert- 
ing principles  inconsistent  with  the  construction  of  those  laws 
given  by  the  court.  But  the  court,  without  examining  in  the 
opinion  the  cases  cited  in  detail,  stated  that,  in  nearly  all  of 
them,  the'  party,  whose  equitable  right  was  protected,  had 
acquired  a  vested  right  by  action  of  the  land  oflftcers,  and  pay- 
ment and  acceptance  of  the  price  of  the  land,  which  those 
oflScers  had  disregarded :  and  that,  in  the  other  cases,  the  suc- 
cessful party  had   established  his   legal  right  of  preference  of 


The  Yosemite  Valley  Case.  83 

purchase  over  others,  under  existino;  law.  and  that,  in  these 
particuhirs.  those  cases  were  widely  different  from  that  of  Frishie 
V.  Whitney. 

But  inasmuch  as  counsel  of  the  defeudant,i  who  appeared  also 
as  one  of  tlie  counsel  in  this  last  case,   again  urges  upon  our 
attention    the    case   of  Lytle   v.    Arkansas,   and    contends,  with 
much    earnestness,    that  it   sustains  principles  in  conflict  with 
those  expressed  in  Frishie  v.  Whitney,  and  also  settles  the  case 
at  bar  in  favor  of  the  defendant,    we  are  induced  to  state,  at 
some  length,  what  that  case  was.   and  what  it  actually  decided. 
In  that  case,  a  pre-emptiouer  by  the  name  of  Cloyes,  claimed  a 
ri2;ht  to  make  an  entry  of  certain  lands,  under  the  act  of  Con- 
gress of  May  2'Jth.  1830.     That  act  gave  to  every  occupant  of 
the  public  lands,  prior  to  its  date,  who  had  cultivated  any  part 
thereof  in  the  year  1821),  a  right  to  enter,  at  the  minimum  price, 
by  legal  subdivisions,   any  number  of  acres  not  exceeding  one 
hundred  and   sixty,    including  his   improvements,   provided  the 
land  was  not  reserved  for  the  use  of  the  United  States,  or  either 
of  the  several  States.     It  required,  before  any  entries  could  be 
made,  that  proof  of  settlement  or  improvement  by  the  claimant 
should  be  made,  to  the  satisfaction  of  the  register  and  receiver  of 
the  land  district,  pursuant  to  rules  prescribed  by  the  Commis- 
sioner of  the  General  Land  Office.     Under  rules  thus  prescribed, 
proof  was  made  of  the  cultivation  and  improvement  of  Cloyes. 
which  was  satisfactory  to  the  register  and  receiver,  and  payment 
of  the  price  was  offered  by  him.     Tliose  officers  held  that  he  was 
entitled  to  enter  one  of  the  fractional  sections  claimed — the  one 
upon  which  his  improvement  was  made,  and  not  the  others — and 
issued  a  certificate  to  him  to  that  effect.     The  plats  of  the  town- 
ship where  the  land  was  situated  not  having  been  furnished  by 
the   surveyor   general,  as   required,    the  formal   entry  with  the 
register  could  not  be  made,  but  in  lieu  thereof,  under  instructions 
of  the  Commissioner  of  the  General  Land  Office,  proof,  identi- 
fying the  land  claimed,  was  allowed  to  be  filed.     The  act  of  1830 
expired  in  one  year,  and  the  public  surveys  of  the  land  were  not 
completed  until  December,  1833,  and  were  not  returned  to  the 
land  office  until  the  beginning  of  1834.     Cloyes  had  thus  done 
all  that  he  could  do  to  perfect  his  right  to  the  title  of  the  United 
States,  under  a  law  which  opened  the  land  for  sale  in  limited 
quantities,  at  specified  prices,  to  its  occupants  and  cultivators. 
Subsequently,  in  July,  1832,  Congress  passed  an  act  giving  to 


r 


84  The  Yosemite  Valley  Case. 

parties  entitled  to  pre-emption  under  the  act  of  1830,  one  year 
from  the  time  when  the  township  plats  should  be  returned,  to 
enter  the  lands.  Under  this  act  the  heirs  of  Cloyes,  he  having 
died,  made  payment  to  the  receiver  for  the  fractional  section  to 
which  his  pre-emption  claim  was  allowed  in  18.30,  as  already 
stated,  and  also  for  the  fractional'  sections  to  which  his  claim 
was  rejected,  and  applied  to  the  register  to  enter  them,  but  that  offi- 
cer refused  to  allow  the  entry.  The  court  held  that,  so  far  as  the 
fractional  quarter-section  to  which  the  claim  was  allowed  by  the 
register  and  receiver  in  1830  was  concerned,  the  refusal  did  not 
affect  the  right  of  the  claimant.  And  it  is  with  respect  to  the 
inability  of  Cloyes  to  make  the  entry  in  1830  for  want  of  the 
township  plats  which  the  surveyor  general  had  failed  to  return, 
and  the  refusal  of  the  register  to  allow  the  entry  subsequently 
under  the  act  of  1832,  that  the  language  cited  by  counsel  was 
used  by  the  court;  namely,  that,  "It  is  a  well-established  prin- 
ciple that  when  an  individual,  in  the  prosecution  of  a  right,  does 
everything  which  the  law  requires  him  to  do,  and  he  fails  to 
attain  his  right  by  the  misconduct  or  neglect  of  a  public  officer, 
the  law  will  protect  him.  In  this  case  the  pre-emption  right  of 
Cloyes  having  been  proved,  and  an  off"er  to  pay  the  money  for 
the  land  claimed  by  him,  under  the  act  of  1830,  nothing  more 
could  be  done  by  him,  and  nothing  more  could  be  required  of  him 
under  that  act.  And  subsequently,  when  he  paid  the  money  to 
the  receiver,  under  subsequent  acts,  the  surveys  being  returned, 
he  could  do  nothing  more  than  to  offer  to  enter  the  land,  which 
the  register  would  not  permit  him  to  do.  This  claim  for  pre- 
emption stands  before  us  in  a  light  not  less  favorable  than  it 
would  if  Cloyes  or  his  representatives  had  been  permitted  by  the 
land  officers  to  do  what  in  this  respect  was  off"ered  to  be  done." 

There  is  no  question  about  the  correctness  of  the  doctrine  here 
announced  ;  it  is  only  a  familiar  principle  which  is  stated,  that 
where  one  off'ers  to  do  everything  upon  which  the  acquisition  of 
a  right  depends,  and  is  prevented  by  fault  of  the  other  side,  his 
right  shall  not  be  lost  by  his  failure. 

The  principle  only  applies  where,  by  law  or  contract,  the  acqui- 
sition of  a  right  is  made  dependent  upon  the  performance  of 
certain  specified  acts.  There  can  be  no  such  thing  as  the  acqui- 
sition of  a  right  of  pre-emption,  that  is  of  a  right  to  be  preferred 
in  the  purchase  of  property  of  the  United  States,  until  such  prop- 
erty is  open  for  sale.    In  the  case  from  Arkansas  the  law  of  1830 


The  Yosemite  Valley  Case.  85 

authorized  the  entry  and  sale  of  the  land  to  the  occupants  and 
cultivators  ;  it  prescribed  certain  things  to  be  done  to  entitle 
them  to  purchase  :  these  things  were  done,  or  would  have  been 
done  by  Cloyes  if  the  officers  of  the  government,  appointed  to 
aid  in  their  performance,  had  not  failed  in  their  duty.    The  hind-  , 

ranee  to  the  complete  performance  of  everything  required  of  the  y^ 
claimant  could  not  impair  his  rights.  And  it  was  immediately 
after  affirming  the  validity  of  his  claim,  notwithstanding  this 
hindrance,  that  the  court  used  the  language  upon  which  so  much 
stress  is  placed  by  the  defendant's  counsel,  to  the  effect  that  a 
claim  of  pre-emption  is  not  a  "  shadowy  right,"  but  when  covered 
by  the  law  is  a  legal  right,  subject  to  be  defeated  only  by  a 
failure  to  perform  the  conditions  annexed  to  it.  This  language 
was  undoubtedly  correct  as  applied  to  the  claim  of  Cloyes.  as 
then  situated,  which  gave  occasion  to  it.  and  it  is  in  a  general 
sense  correct  as  applied  to  every  claim  of  pre-emption.  Such 
claim,  it  must  remembered,  is  only  a  claim  to  be  preferred  in  the 
purchase  of  the  lands  of  the  United  States  in  limited  quantities, 
at  fixed  prices,  when  the  lands  are  offered  for  sale  in  the  usual 
manner.  AVhen  one  has  acquired  this  claim  by  complying  with 
the  conditions  of  the  law  for  its  acquisition  he  has  a  legal  right 
to  be  thus  preferred,  when  the  sale  is  made,  as  against  others 
asserting  a  similar  right  under  the  law.  which  the  court  will 
enforce  in  proper  cases.  But  the  claim  of  pre-emption,  as 
alread}^  said,  can  never  arise  when  the  law  does  not  provide  for 
a  sale  of  the  property.  Until  thus  sanctioned  by  the  law,  the 
claim,  as  stated  by  the  court  in  that  case,  has  no  existence  as  a 
substantive  right. 

There  is  nothing  in  the  case  of  the  defendant  which  is  at  all 
analogous  to  that  of  Cloyes.  Here  the  land  occupied  by  the 
defendant  was  never  offered  for  sale,  but  was  excluded  from  any 
possible  sale  by  appropriation  to  perpetual  public  use.  resort,  and 
recreation.  Nothing  was  therefore  recpiired  or  should  be  required 
of  the  defendant  for  the  acquisition  of  the  title,  and  nothing 
could  be.  or  was  done  by  him  to  that  end. 

In  the  case  from  Arkansas,  the  right  of  Cloj^es  had  been 
defeated  by  the  failure  of  the  executive  officers  to  perform  their 
duty  under  the  law.  he  having  complied  fully  with  its  provisions, 
except  so  far  as  he  was  prevented  by  such  failure,  and  having 
thus  acquired  a  right  to  the  title  of  the  government.  In  the  pres- 
ent case  no  default  on  the  part  of  the  executive  officers  is  alleged 


86  The  Yosemite  Valley  Case. 

or  pretended.  Tlie  ground  of  complaint  is  tiiat  the  defendant 
could  not  acquire  the  title  under  the  pre-emption  laws,  because 
Congress  had  granted  the  land  to  the  State  and  thus  withdrawn 
it  from  sale.  In  the  one  case  it  is  the  act  of  the  executive 
officers  which  is  the  ground  otf  complaint ;  in  the  other  it  is  the 
action  of  Congress. 

The  court  cannot  assume,  and  then  found  a  decree  upon  the 
truth  of  the  assumption,  that  the  defendant  would  have  complied 
with  the  provisions  of  the  pre-emption  laws,  had  Congress  never 
made  the  grant.  Nor  could  it  make  any  such  assumption,  even 
if  it  were  held  that  those  laws  surrendered  unconditionally  the 
entire  public  lands  to  settlers,  instead  of  allowing  them  the  privi- 
lege of  pre-emption,  provided  that  the  lands  are  offered  for  sale 
in  the  usual  manner. 

In  June,  1832,  Congress  passed  an  act  granting  to  the  Territory 
of  Arkansas  one  thousand  acres  of  land,  contiguous  to  and 
adjoining  the  town  of  Little  Rock,  for  the  erection  of  a  court- 
house and  jail.  The  grant  was  not  of  any  specific  tract,  but 
only  of  a  specified  quantity,  to  be  selected  by  the  governor. 
Previous  to  the  selection  by  him.  and  previous  to  the  grant.  Cloyes 
had  acquired  a  right,  as  already  stated,  to  the  title  of  the  govern- 
ment. This  was  a  vested  right,  and  the  court  very  properly  held 
that  Congress,  in  making  the  grant  to  Arkansas,  did  not  intend  to 
impair  vested  rights,  and  that  the  grant  must  be  so  construed  as 
not  to  interfere  with  the  pre-emption  of  Cloyes.  No  other  ruling 
would  have  been  consistent  with  settled  principles.  Had  the 
lands  in  the  Yosemite  Valley  been  open  for  sale,  and  had  Hutch- 
ings  acquired  a  right  to  the  title  of  the  United  States  by  comply- 
ing with  all  the  conditions  upon  which  the  acquisition  of  that  title 
depended  before  the  grant  to  the  State,  his  position  would  have 
some  analogy  to  that  of  Cloyes.  His  right  to  the  title  would 
then  have  been  a  vested  right,  and  the  grant  to  the  State  would 
then  have  been  construed  so  as  not  to  interfere  with  his  pre- 
emption. But  his  declarations  as  to  what  he  would  have  done  had 
the  land  not  been  withdrawn  by  Congress  from  the  operation  of 
the  pre-emption  laws,  are  unavailing  for  any  purpose. 

The  case  of  Lytle  v.  Arhivsas.  is  confessedly  the  strongest 
case  which  counsel  can  cite  in  support  of  the  anomalous  views 
advanced  by  him.  It  is  manifest  from  the  statement  we  have 
made  of  the  facts  of  that  case,  that  neither  the  case  itself,  nor  the 
language  used  in  the  opinion  of  the  court,   when  considered  in 


Sherman  v.  Buick.  87 

connection  with  the  facts,  give  the  slightest  countenance  to  those 
views ;  but  that  the  decision  of  the  court,  and  the  doctrines 
expressed  in  the  opinion,  are  in  entire  liarmony  with  the  prin- 
ciples announced  in  Frisbie  v.  Whitney.  The  whole  difficulty  in  the 
argument  of  the  defendant's  counsel  arises  from  his  confounding 
the  distinction  made  in  all  the  cases,  whenever  necessary  for  their 
decision,  between  the  acquisition  by  the  settler  of  a  legal  right 
to  the  land  occupied  by  him  as  against  the  owner,  the  United 
States  ;  and  the  acquisition  by  him  of  a  legal  right  as  against  other 
parties  to  be  pi-eferred  in  its  purchase,  when  the  United  States 
have  determined  to  sell.  It  seems  to  us  little  less  than  absurd  to 
say  that  a  settler,  or  any  other  person,  by  acquiring  a  right  to  be 
preferred  in  the  purchase  of  property,  provided  a  sale  is  made  by 
the  owner,  tliereby  acquires  a  right  to  compel  the  owner  to  sell, 
or  such  an  interest  in  the  property  as  to  deprive  the  owner  of  the 
power  to  control  its  disposition. 

The  act  of  California,  of  Februar}^  1868,  attempting  to  grant 
the  premises  in  controversy  to  the  defendant,  is,  by  its  own 
terms,  inoperative  until  ratified  by  Congress.  No  such  ratifica- 
tion has  ever  been  made,  and  it  is  not  believed  that  Congress  will 
ever  sanction  such  a  perversion  of  the  trust  solemnly  accepted  by 
the  State.  Judgment  affirmed. 

1.  Air.  Julian's  name  was  pruited  as  one  of  the  coimsel  to  the  brief 
tiled  for  the  defendant  in  Fri.ihie  v.  Whitney^  though  his  name  is  not 
given  ill  the  report  of  the  case  in  9th  Wallace,  he  not  liaving  participated 
in  tlie  oral  argument. — Rkp. 


Sherman  v.  BncK. 
Oftober  'l"erm,  ISTC— 3  Otto,  '300. 

'i'estimony,  whether  parol  or  documentary,  which  shows  a  want  of 
power  in  officers  who  issue  a  patent,  is  admissible  in  an  action  at  law 
to  defeat  a  title  set  up  under  it.  In  such  case,  tlie  patent  is  not 
merely  voidable,  but  absolutely  void,  and  the  party  is  not  obliged  to 
resort  to  a  court  of  equity  to  have  it  so  declared. 

In  construing  tlie  act  of  March  3,  1853  {10  Stat  ,  24!5),  the  court  held : 
1.  School  sections  sixteen  and  thirty-six,  granted  to  the  State  of 
California  by  sect,  (j  of  the  act,  are  also  excepted  from  the  operation 
of  the  pre-emption  law  to  which,  by  the  same  section,  the  public 
lands  generally  are  subjected.     2.  Tlic  rule  governing  tlio  riglit  of 


88  Sherman  v.  Buick. 

pre-emption  on  school  sections  is  provided  by  tlie  seventh  section  of 
the  act ;  and  it  protects  a  settlement,  if  the  surveys,  when  made, 
ascertain  its  location  to  be  on  a  school  section.  3.  In  such  case,  the 
only  right  conferred  on  the  State  is  to  select  other  land  in  lieu  of 
that  so  occupied,  4.  The  proviso  to  the  sixth  section,  forbidding 
pre-emption  on  unsurveyed  lands,  after  one  year  from  the  passage 
of  the  act,  is  limited  to  the  lands  not  excepted  out  of  that  section, 
and  has  no  application  to  the  school  sections  so  excepted. 

Error  to  the  Supreme  Court  of  the  State  of  California. 

The  plaintiff  in  error  brought  suit  in  the  proper  court  of  the 
State  of  California  to  recover  possession  of  a  part  of  section  36, 
township  5  south,  range  1  east,  Mount  Diablo  meridian,  and 
asserted  title  thereto  under  a  patent  from  the  United  States, 
bearing  date  May  15,  1869.  The  defendant  claimed  nnder  a 
patent  from  the  State  of  California,  of  the  date  of  Jan.  1.  1869, 
The  title  of  the  State  is  supposed  to  rest  on  the  act  of  Con- 
gress of  March  3,  1853  (10  Stat..  246),  granting  to  her,  for 
school  purposes,  with  certain  limitations,  every  sixteenth  and 
thirty-sixth  section  within  her  boundaries,  according  to  the  sur- 
veys to  be  thereafter  made  of  the  public  lands. 

The  plaintiff,  in  aid  of  his  patent,  and  to  defeat  the  title  of  the 
State  under  the  act  of  1853,  offered  to  prove  that,  as  early  as 
Dec.  20,  1862,  he  had  settled  upon  the  land,  and  had  ever  since 
resided  on  it;  that  it  was  not  surveyed  until  Aug.  11,  1866; 
that  he  had  filed  and  proved  his  pre-emption  claim  to  it  Nov,  6, 
1866  ;  and  paid  for  it,  and  received  a  patent  certificate,  on  which 
Ms  patent  was  duly  issued. 

The  court  excluded  this  evidence,  and  gave  judgment  for  the 
defendant,  which  was  affirmed  by  the  supreme  court ;  whereupon, 
the  plaintiff  sued  out  this  writ  of  error.  The  sections  of  the  act 
which  bear  upon  the  case  are  set  forth  in  the  opinion  of  the  court. 

Mr.  Philip  Phillips.  Mr.  S.  M.  Wilson,  and  Mr.  George  A. 
Nourse,  for  the  plaintiff  in  error. 

1.  It  was  competent  for  the  plaintiff  to  show  that  the  State,  at 
the  date  of  her  patent  to  the  defendant,  had  no  title  to  the 
lands  in  controversy.  PoWs  Lessee  v.  Wendell,  9  Cranch,  87  ; 
Patterson  x.'Wirrn,  11  Wheat.,  381;  Patterson  x.  Tatum,  Pacific 
Law  Reporter.  Oct.  6,  1874  ;  Doll  v.  Meatier.  16  Cal.,  295  ;  Terry 
V.  Megerle,  24  Id.,  609  :  Reichart  v.  Felps,  6  AVall.,  160  ;  Morton 
V.  Nebraska,  21  Id,,  860, 

2.  The  legal  title  to  sections  sixteen  and  thirty-six  did  not  vest 


Sherman  v.  Buick.  89 

in  the  State  until  tlie}'  were  marked  out  and  defined  by  survey. 
Until  then,  the  grant  to  her  was  in  the  nature  of  a  float-  Middle- 
ton  V.  Loice,  30  Cal.,  598  ;  Railroad  v.  Freniont  Covidy.  i)  Wall., 
94  ;  Gaines  v.  Nicholson.  9  How..  356  ;  Cooper  v.  Roberts,  18  /(/., 
173.  The  settlement  of  the  plaintiff  having;  been  made  before 
such  survey,  was  within  the  exception  contained  in  the  seventh 
section  of  the  act  of  1853.  The  grant,  therefore,  did  not  embrace 
the  lands  covered  by  that  settlement,  and  the  patent  of  the  State 
was  an  absolute  nullity. 

3.  The  intention  of  Congress  to  protect  pre-emption  settle- 
ments made  on  school  sections,  before  such  survey,  is  clearly 
manifested  by  the  provision  authorizing  the  State  to  select  other 
lands  in  lieu  of  those  on  which  such  settlements  were  made. 

Mr.  Mo)d[iomfry  Blair  for  the  defendant  in  error. 

1.  The  grant  of  sections  sixteen  and  thirty-six  was  in  pnesenti. 
No  settlement  on  the  lands  in  controversy  having  been  made  by 
the  plaintiff"  at  the  date  of  the  act,  or  within  one  year  thereafter, 
they  were  not  excepted  from  the  grant.  Houghton  v.  Higgins.  25 
Cal.,  255  ;  Dollx.  Meader,  16  Id.,  296  ;  VanVolkenburg  v.  McCleud, 
21  Id.,  330;  Summers  v.  Dickinson,  9  Id..  554;  Oicen  v.  Jackson, 
Id.,  322  ;  Keeran  v.  Griffith,  27  Id.,  87  ;  Robinson  v.  Forest,  29 
Id.,  317  ;  Bludworth  v.  Lake,  23  Id.,  2bb  ;  Mezerle  v.  Ashe.  27  Id.. 
328;  33  Id.,  74;  Rutherford  v.  Greene,  2  Wheat.,  196. 

2.  Although  a  survey  was  required  to  identify  these  sections  by 
specific  boundaries,  a  vested  interest  passed  to  the  State  by  force 
of  the  act  of  1853.  The  doctrine  qf  relation  has  been  uniformly 
applied  when  executive  acts,  whether  by  survey  or  patent,  are 
required  to  give  full  eff'ect  to  a  grant.  The  title,  whenever  the^^ 
are  completed,  inures  as  of  the  date  of  the  inception  of  the 
grant,  and  defeats  all  intervening  claims.  Landis  v.  Brant,  10 
How.,  373:  Kissell  x.  The  Public  Schools.  18  Id..  19:  Cooper  v. 
Robers,  Id..  173;  Chotean  v.  Gibson,  13  Wall.,  92;  Maguire  v. 
Tyler,  8  Id.'.  650;  Railroad  Company  v.  Smith.  9  Id..  95;  Feeder 
X.  Gappy,  3  Wis.,  502. 

It  is  said,  on  the  other  side,  that  the  grant  does  not  attach  to 
the  school  sections  till  they  are  surveyed,  because,  till  then, 
there  were  no  such  sections.  This  proves  too  much.  If  the 
thing  granted  did  not  exist,  or  was  not  described  with  ce^taint3^ 
the  grant  would  be  void,  which  is  not  the  argument.  The  thing 
granted  is  the  land  which  did  exist.  "Section"  is  only  a  word 
of  description,  but    it    is  a    certain    and    enduring  description : 


90  Sherman  v.  Buick. 

and  a  grant  of  a  particular  section  is  equally  operative  to  appro- 
priate it.  whether  its  lines  have  been  already  run,  or  are  here- 
after to  be  run  in  the  same  manner,  making  the  location  only 
a  question  of  measurement  and  calculation.  Hence  the  descrip- 
tion is  as  complete  in  the  one  ease  as  in  the  other,  and  is  so 
treated  by  the  law ;  for  the  grant  applies  in  terms  to  the  "  sur- 
veyed and  to  the  unsurveyed  land."  As  much  violence  is  done 
to  the  language  by  withholding  the  -'unsurveyed"'  lands  from  the 
schools  as  by  denying  them  to  pre-emptors. 

3.  Subsequent  acts,  extending  the  permission  to  settle  upon 
unsurveyed  lands,  have  no  bearing  upon  this  case.  They  cannot 
operate  to  recall  the  grant  of  1853,  or  impair  the  rights  which  the 
State  acquired  under  it.  The  government  cannot  resume  its 
grants.     Neiv   Orleans  v.  De  Armas,  9  Pet.,  224. 

AIk.  Justice  Miller,  after  stating  the  case,  delivered  the 
opinion  of  the  court. 

The  contest  in  this  case  is  between  a  patent  of  the  United 
States  and  a  patent  of  the  State  of  California.  To  determine 
which  of  them  conveyed  under  the  facts  offered  in  evidence,  the 
title  to  the  land  in  controversy,  a  construction  of  the  act  of  1853 
is  required.  It  is  entitled  "An  act  to  provide  for  the  survey  of 
^the  public  lands  in  California,  the  granting  of  pre-emption  rights 
therein,  and  for  other  purposes,"'  and  is  the  first  act  of  Congress 
which  extended  the  land  system  of  the  United  States  over  the 
newly  acquired  territory  of  that  State.  It  provided  for  surveys, 
for  sales,  for  the  protection  of  the  rights  of  settlers,  miners,  and 
others  ;  and.  among  the  other  purposes  mentioned  in  the  caption, 
for  magnificent  donations  to  the  State  of  lands  for  schools  and 
for  public  buildings. 

The  sixth  and  seventh  sections  of  the  act  are  of  chief  import- 
ance in  the  matter  under  consideration  ;  the  preceding  sections 
having  provided  for  surveying  all  the  lands.  The  clause  of  the 
sixth  section,  in  which  the  grant  to  the  State  of  the  sixteenth  and 
thirty-sixth  sections  for  school  purposes  is  found,  reads  as  fol- 
lows : 

"  All  t!ie  public  lauds  in  the  State  of  California,  whether  survej^ed  or 
unsurveyed,  with  the  exception  of  sections  sixteen  and  thirty-six,  which 
shall  be.  and  hereby  are.  granted  to  the  State  for  the  purposes  of  public 
schools  in  each  township ;  and,  with  the  exception  of  lands  appropriated 
under  this  act,  or  reserved  b_y  competent  authority,  and  exce pting  also, 
tlie  lands  claimed  under  any  foreign  grant  or  title,  and  the  mineral  lands^ 


/ 


Sherman  v.  Buiok.  91 

shall  be  subject  to  the  pre-emption  laws  of  the  4th  of  September,  1841, 
with  all  the  exceptions,  conditions  and  limitations  therein,  except  as  is 
herein  otherwise  provided  ;  and  shall,  after  the  plats  thereof  are  returned 
to  the  office  of  the  register,  be  ottered  for  sale,  after  six  mouths'  public 
notice  in  the  State  of  the  time  and  place  of  sale,  under  the  laws,  rules, 
and  regulations  now  governhig  such  sales,  or  such  as  maj'  be  hereafter 
prescribed.'' 

Then  come  several  provisos,  which  we  will  consider  hereafter ; 
but  we  pause  here  to  note  the  effect  of  this  granting  and  except- 
ing clause  on  the  lands  which  should,  by  the  future  surveys  of 
the  government,  be  found  to  be  sections  sixteen  and  thirt^'-six. 

It  is  obviously  the  main  purpose  of  the  section  to  declare,  that 
after  the  lands  are  surveyed  they  shall  be  su1>ject  to  sale,  accord- 
ing to  the  general  land  system  of  the  government ;  and,  secondly, 
to  subject  them  to  the  right  of  pre-emption  as  defined  by  the  act 
of  1841.  and  to  extend  that  right  to  lands  unsurveyed  as  well  as 
to  those  surveyed. 

But  here  it  seemed  to  occiu-  to  the  framer  of  the  act,  that  Cali- 
fornia, like  other  States  in  which  public  lands  lay,  ought  to  have 
the  sixteenth  and  thirty-sixth  sections  of  each  township  for  school 
purposes,  and  that  they  should  not  be  liable  to  the  general  pre- 
emption law,  as  other  public  lands  of  the  government  would  be. 
He  accordingly  injected  into  the  sentence  the  grant  of  these  lands 
to  the  State,  and  the  exception  of  them  from  the  operation  of  the 
pre-emption  law  of  1841.  together  with  other  lands  which  in  like 
manner  were  neither  to  be  sold  nor  made  subject  to  pre-emption. 
These  were  lands  appropriated  under  the  authority  of  that  act.  or 
reserved  by  competent  authority  ;  lands  claimed  under  any  foreign 
grant  or  title  {i.  e.  Mexican  grants) ;  and  mineral  lands 
these  were  by  this  clause  exempted  from  sale  and  from  the  general 
operation  of  tlie  pre-emption  laws. 

But  the  experience  of  the  operation  of  our  land  system  in  other 
States  suggested  that  it  might  be  ten  or  twenty,  and  in  some 
instances  thirty,  years  before  all  the  surveys  would  be  completed 
and  the  precise  location  of  each  school  section  known.  In  the  mean- 
time, the  State  was  rapidly  filling  up  bj^  actual  settlers,  whose 
necessities  required  improvements,  which,  when  found  to  be  located 
on  a  school  section,  should  have  some  protection.  What  it  should 
be,  and  how  the  relative  rights  of  the  settler  and  of  the  State 
should  be  also  protected  under  these  circumstances,  is  the  subject 
of  a  distinct  section  of  the  act ;  the  one  succeeding  that  we  have 
just  considered. 


•reign  . 
__A11  X 
■neral        / 


92  Sherman  v.  Buick. 

That  section  (7)  provides  :  '•  That  when  any  settlement,  by  the 
erection  of  a  dwelling-house,  or  the  cultivation  of  any  portion  of 
the  land,  shall  be  made  upon  the  sixteenth  and  thirty-sixth  sections 
before  the  same  shall  be  surveyed,  or  when  such  sections  may  be 
reserved  for  public  uses,  or  taken  b}^  private  claims,  other  land  shall 
be  selected  by  the  proper  authorities  of  the  State  in  lieu  thereof." 
That  it  was  the  purpose  of  this  section  to  provide  a  rule  for  the 
exercise  of  the  riglit  of  pre-emptiou  to  the  school  lands  granted 
by  the  previous  section  cannot  be  doubted.  The  reason  for  this 
is  equally  clear  ;  namely,  that  these  lands  were  not  only  granted 
away  by  the  preceding  section  and  inchoate  rights  conferred  on 
the  State,  but  they  were,  with  other  classes  of  lands,  by  express 
terms  excepted  out  of  the  operation  of  the  pre-emption  laws 
which  it  was  a  principal  object  of  tliat  section  to  extend  to  the 
pulilic  lands  of  California  generally. 

Whether  a  settler  on  these  school  lands  must  have  all  the  qualifi- 
cations required  by  the  act  of  1841,  as  being  the  head  of  a  family, 
a  citizen  of  the  United  States.  &c..  or  whether  the  settlement, 
occupation,  and  cultivation  must  be  precisely  the  same  as  required 
by  that  act.  we  need  not  stop  to  inquire.  It  is  very  plain  that, 
by  the  seventh  section,  so  far  as  related  to  the  date  of  the  settle- 
ment, it  was  sufficient  if  it  was  found  to  exist  at  the  time  the 
surveys  were  made  which  determined  its  locality  ;  and,  as  to  its 
nature,  that  it  was  sufficient  if  it  was  by  the  erection  of  a  dwelling- 
house,  or  by  the  cultivation  of  any  portion  of  the  land. 

These  things  being  found  to  exist  when  the  survey  ascertained 
their  location  on  a  school  section,  the  claim  of  the  State  to  that 
particular  piece  of  land  was  at  an  end  ;  and  being  shown  in  the 
proper  mode  to  the  proper  officer  of  the  United  States,  the  right 
of  the  State  to  that  land  was  gone,  and  in  lieu  of  it  she  had 
acquired  the  right  to  select  other  land  agreeably  to  the  act  of  1826, 
subject  to  the  approval  of  the  Secretary  of  the  Interior. 

But  it  is  said  that  the  right  of  pre-emption  thus  granted  by  the 
seventh  section  was  subject  to  tlie  limitation  prescribed  by  the 
third  proviso  to  the  sixth  section  ;  namely.  •'  that  nothing  in  this 
act  shall  be  construed  to  authorize  any  settlement  to  be  made  ou 
any  public  lands  not  surveyed,  unless  the  same  be  made  within 
one  year  from  the  passage  of  this  act ;  nor  shall  any  right  of  such 
settler  be  recognized  by  virtue  of  any  settlement  or  improvement 
made  of  such  unsurveyed  lands  subsequent  to  that  date."  And 
such  was  the  opinion  of  the  Supreme  Court  of  California.     And 


Sherman  v.  Buick.  93 

that  court,  assuming  this  to  be  true,  further  lield,  that  the  grant 
made  by  the  act  of  the  school  sections  was  a  present  grant,  vesting 
the  title  in  the  State  to  the  sixteenth  and  thirtj^-sixth  sections 
absolutely,  as  fast  as  the  townships  were  surveyed  and  sectionized. 
Higrjiiis  V.  IIoiK/htoii,  25  Cal.,  252.  As  a  deduction  from  these 
premises,  it  held,  that  the  right  to  pre-emption  on  these  lands 
expired  with  the  lapse  of  the  year  from  the  passage  of  the  act, 
and  that  no  subsequent  act  of  Congress  could  revive  or  extend  it, 
even  if  it  was  so  intended. 

But  we  are  of  opinion  that  the  first  of  this  series  of  propo- 
sitions is  untenable. 

The  terms  of  the  proviso  to  the  sixth  section,  and  those  of  the 
seventh  section,  if  to  be  applied  to  the  same  class  of  lands,  are 
in  conflict  with  each  other.  The  one  says,  that  if  settlement  be 
made  on  land  before  the  survey,  which  by  that  survey  is  found 
to  be  on  the  sixteenth  or  thirty-sixth  section,  the  settlement  shall 
be  protected  ;  the  other  says,  that  no  settlement  shall  be  protected 
unless  made  within  one  year  after  the  passage  of  the  act.  In 
view  of  the  well-known  fact  that  none  of  these  surveys  would  be 
completed  under  several  years,  the  provision  of  the  seventh  sec- 
tion was  a  useless  and  barren  concession  to  the  settler,  if  to  be 
exercised  within  a  year,  and,  in  the  histor}^  of  land  titles  in  that 
State,  would  have  amounted  to  nothing.  This  appai'ent  conflict 
is  reconciled  by  holding  to  the  natural  construction  of  the  language 
and  the  reasonable  purpose  of  Congress,  by  which  the  limitation 
of  one  year  to  the  right  of  pre-emption  in  the  sixth  section  is 
applicable  alone  to  the  general  body  of  the  public  lands  not  granted 
away,  and  not  excepted  out  of  the  operation  of  the  pre-emption 
law  of  1841,  as  the  school  lands  were,  by  the  very  terms  of  the 
previous  part  of  the  section  ;  while  section  7  is  left  to  control  the 
right  of  pre-emption  to  the  school  sections,  as  it  purports  to  do. 

In  this  view  of  tlie  matter,  the  very  learned  argument  of  counsel 
on  the  question  of  the  character  of  the  grant  as  to  the  time  when 
the  title  vests  in  the  State,  and  the  copious  reference  to  the  acts 
of  Congress  and  of  the  State  as  authorizing  pre-emption  after 
the  expiration  of  one  year  from  the  date  of  the  statute,  are  imma- 
terial to  the  issue.  Actual  settlement  before  survey  made,  accom- 
panied the  grant  as  a  qualifying  limitation  of  the  right  of  the 
State,  which  she  was  bound  to  recognize  when  it  was  found  to 
exist,  and  for  which  she  was  authorized  to  seek  indemnity  in 
another  quarter.     There  is,  therefore,  no  necessitj'  for  any  addi- 


94  Sherman  v.  Buick. 

tional  legislation  by  Congress  to  secure  the  ])i-e-emption  right  as 
to  school  sections,  and  no  question  as  to  whether  it  has  so  legis- 
lated or  whether  such  legislation  would  be  valid,  and  we  do  not 
enter  on  those  questions. 

No  question  is  made  in  the  argument  here,  none  seems  to  have 
been  made  in  the  Supreme  Court  of  the  State,  and  none  is  to  be 
found  in  its  opinion  in  the  case  as  to  the  admissibility  of  the 
rejected  testimony,  if  the  fact  which  it  sought  to  establish  could  be 
recognized  by  the  court.  Nor  do  we  think  such  objection,  if  made, 
is  sustainable.  The  testimony  offered  does  not  go  to  impeach  or 
contradict  the  patent  of  the  United  States  or  vary  its  meaning. 
Its  object  was  to  show  that  the  State  of  California,  when  she  made 
her  conveyance  of  the  land  to  defendant,  had  no  title  to  it ;  that 
she  never  had.  and  that  by  the  terms  of  the  act  of  Congress  under 
which  she  claimed  the  only  right  she  ever  bad  in  regard  to  this 
tract  was  to  seek  other  land  in  lieu  of  it.  The  effect  of  the  evidence 
was  to  show  that  the  title  set  up  by  defendant  under  the  State  was 
void — not  merely  voidable,  but  void  ah  initio.  For  this  purpose 
it  was  competent,  and  it  was  sufficient ;  for  it  showed  that  when 
the  survey  was  actually  made,  and  the  land  in  question  was  found 
to  be  part  of  section  thirty-six.  plaintiff  had  made  a  settlement 
on  it,  within  the  meaning  of  the  seventh  section  of  the  act  of  1853. 
and  the  State  could  do  nothing  but  seek  indemnity  in  other  land. 

It  has  always  been  held  that  an  absolute  want  of  power  to  issue 
a  patent  could  be  shown  in  a  court  of  law  to  defeat  a  title  set  up 
under  it,  though  where  it  is  merely  voidable  the  party  may  be  com- 
pelled to  resort  to  a  court  of  equity  to  have  it  so  declared.  Stod- 
dard V.  Chambers,  2  How.,  317  ;  Easton  v.  Salisbi(ry,  21  Id.,  426  : 
Reichart  v.  Feljjs,  .6  Wall.,  160. 

Judgment  reversed  and  case  remanded,  ivith  direction  to  order 
a  new  trial  in  conformity  to  the  principles  of  this  opinion. 

Mr.  Justice  Field  took  no  part  in  the  decision  of  this  case. 


Note  — A  patent  not  absolutely  void  cannot  be  questioned  by  one 
who  does  not  clahn  a  prior  interest  in  the  land.  Stringer  v.  Young,  3 
Peters,  320;  Hedle>j\.  Leonard.  M  Mich.,  7L;  Cruise  \.  liiddle.  21  Ala., 
791 ;  Jenkins  v.  Gibson.,  3  La.  Ann.,  "203  ;  Mumford  v.  JUcKennei/,  21  La. 
Ann..  547;  Johnson  v.  Home,  32  Miss.,  151  ;  Holt  v.  Hemphill,  3  Ohio, 
232  ;  Buckner  v.  Lawrence,  1  Douglas  (Mich.).  19. 


Ferguson  v.  McLaughlin.  95 

Ferguson  v.  McLaigiilix. 

OctolKM-  '\'vv\u.  1S77.— 0  Otto.  174. 

Under  sect.  6  of  the  act  of  March  •^,  1858,  (10  Stat.,  244).  a  settler  upon 
unsurveyed  public  lauds  in  California  has  no  valid  claim  to  pre-empl 
a  (luarter-section,  or  any  part  thereof,  included  in  his  settlement, 
unless  it  appears  by  the  government  surveys,  when  the  same  are 
made  and  tiled  in  the  local  land  office,  that  his  dwelling-liouse  was 
on  tliat  quarter-section. 

Error  to  the  Supreme  Court  of  the  State  of  California. 
Mr.  J.  A.  Moultrie,  for  tlie  defendant  in  error. 
There  was  no  opposing  counsel. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

The  case  l)efore  us  was  originally  an  action  to  recover  posses- 
sion of  laud,  brought  in  the  proper  court  of  the  State  of  Cali- 
fornia. 

The  plaintiff  proved  a  patent  from  the  United  States  to  the 
AYestei-n  Pacific  Railroad  Company,  and  a  conveyance  by  said 
company  to  him  of  the  land  in  dispute.  In  conformity  to  the 
practice  in  the  courts  of  California,  the  defendant.  Ferguson,  filed 
an  answer  in  nature  of  a  cross-bill  in  equity,  which  alleged  that 
while  plaintiff  had  the  apparent  legal  title,  he  held  it  or  should  be 
decreed  to  hold  it.  for  the  benefit  of  the  defendant.  The  ground 
of  this  equitable  right,  briefly  stated,  is.  that  the  defendant  had 
made  a  valid  claim  to  the  land  under  the  pre-emption  laws  before 
the  inception  of  plaintiff's  title,  and  that  although  this  matter  had 
been  contested  before  the  officers  of  the  land  department,  and 
they  had  decided  in  favor  of  the  AYestern  Pacific  Railroad  Cora- 
panj^  yet  that  decision  was  erroneous  in  law  and  in  fact ;  and  he 
prayed  the  court  to  decree  him  that  relief  which  he  was  in  equity 
entitled  to.  The  case  was  submitted  to  the  court,  whose  findings 
of  fact  are  in  the  record,  and  whose  judgment  in  favor  of  the 
plaintiff  in  the  court  below  was  affirmed  by  the  Supreme  Court  of 
the  State. 

This  writ  of  error  brings  l)efore  us  the  question  whether,  on  the 
facts  so  found,  the  defendant  below,  the  plaintiff  here,  is  entitled 
to  be  declared  the  equitable  owner  of  the  lund  for  which  the  other 
party  recovered  judgment. 

There  is  not  the  slightest  evidence  of  fraud  or  of  any  mistake 
of  fact  in  the  proceedings  before  the  land  department.     There  is 


96  Ferguson  v.  McLaughlin, 

very  little  evidence  of  what  did  take  place  there,  and  especially 
what  was  proved  there. 

Bnt  there  is  in  the  findings  of  the  court  a  statement  that  his 
claim  was  rejected  by  the  land  office  on  two  grounds  ;  namely.  1, 
that  his  residence  was  not  on  any  part  of  the  congressional  sub- 
division to  which  this  land  belonged  :  and,  2.  that  he  had  sold 
part  of  the  land  for  which  he  had  filed  his  original  pre-emption 
claim. 

The  act  of  Congress  of  1853,  providing  for  the  survey,  pre- 
emption and  sale  of  the  public  lands  in  California,  which  was 
before  this  court  in  Sherman  v.  Buick  (93  U.  S.,  209),  declares  that 
all  those  lands,  with  certain  exceptions  not  pertinent  to  this  case, 
shall,  whether  surveyed  or  iin surveyed,  be  subject  to  the  pre-emp- 
tion law  of  the  4th  of  September.  1841.  with  all  the  exceptions, 
conditions  and  limitations  therein  contained. 

One  of  those  limitations  is,  that  the  person  claiming  the  right 
of  pre-emption  to  any  part  of  the  public  land,  must  have  erected 
a  dwelling-house  and  made  an  improvement  thereon,  and  that  the 
congressional  subdivision  for  which  claim  is  made,  must  include 
the  claimant's  residence.  It  is  true  that,  under  that  law,  no  valid 
settlement  could  be  made  until  after  the  land  had  been  surveyed, 
and  the  party  could  know  just  where  he  was  making  his  resi- 
dence, with  reference  to  the  congressional  subdivision  which  he 
proposed  to  claim  ;  while,  under  the  act  of  1853,  he  could  settle 
before  the  surveys,  and  make  his  claim  after  they  had  been  made 
and  filed  in  the  local  office. 

The  officers  of  the  land  department  have,  however,  held  that, 
when  he  comes  before  them  finally  to  assert  his  claim,  he  could 
not  establish  a  valid  claim  for  any  quarter-section,  or  any  part  of 
a  quarter-section,  unless  his  dwelling-house,  his  actual  residence, 
was  on  some  part  of  that  quarter-section.  In  this  construction 
of  the  act  of  1853,  we  concur,  and  it  is  fatal  to  the  case  of  plain- 
tiff in  error.  And  tliis  question  of  law  is  the  only  one  of  which 
this  court  can  have  jurisdiction  in  the  present  case. 

It  appears  very  clearly  by  the  facts  found,  that  Ferguson's 
original  claim  or  settlement,  of  about  one  hundred  and  fifty 
acres,  is  subdivided  by  the  township  line  which  runs  between 
townships  six  and  seven  south,  of  range  one  west,  of  the  Mount 
Diablo  meridian,  and  that  about  thirty  acres,  including  his  resi- 
dence, fell  within  the  latter.  He  afterwards  secured  a  title  to 
this  as  a  settler,  on  land  granted  to  the  town  of  Santa  Clara,  by 


Lytle  v.  The  State  of  Arkansas.  97 

act  of  Congress,  which  act  provided  that  the  grant   should  inure 
to  the  benefit  of  those  who  were  actual  settlers  on  any  part  of  it. 

As  we  have  already  said,  the  land  office  held  that  this  fact  was 
fatal  to  his  right  of  pre-emption  in  any  portion  of  township  6, 
though  it  adjoined  his  land  in  the  other  township,  and  was  part  of 
his  improvement. 

We  see  no  error  in  that  construction  of  the  law,  and  none  in 
the  judgment  of  the  »Supreme  Court  of  Californaia. 

Judgment  affirmed. 


Robinson  Lytle  and  Lydia  Lofisa  Lytle,  his  wife,  Elias 
Hooper  and  Mary  E.  Hooper,  his  wife,  and  Nathan  H. 
Cloyes.  a  Minor,  under  twentj'-one  years  of  age.  by  Wiley 
Clayton,  his  Guardian,  c.  The  State  of  Arkansas,  William 
Russell,  The  Real  Estate  Bank  of  the  State  of  Arkansas, 
the  Trustees  of  said  Real  Estate  Bank  aforesaid,  Richard  C. 
Byrd,  James  Pitcher,  Wm.  P.  Officer,  Ebenezer  Walters, 
John  Wassell,  John  W.  Cocke,  Frederick  W.  Trapnall, 
George  C.  Watkins,  Samuel  H.  Hempstead,  John  Robins, 
John  Percefull,  James  S.  Conway,  Henry  F.  Pendleton, 
Jacob  Mitchell,  Thomas  S.  Reynolds,  John  H.  Leech, 
Wm.  E.  Woodruff,  Chester  Ashley,  Wm.  J.  Byrd,  Wm.  W. 
Daniel,  and  John  Morrison,  and  Edney,  his  wife, 

December  Term,  1849.— 1»  Howard,  314;   IS  Curtis,  154. 

Under  the  act  of  May  29,  1830  (4  Stats,  at  Large,  420),  continued  m  force 
by  the  act  of  -iuly  14,  1832  (4  Stats,  at  Large,  003),  and  the  instiuc- 
tions  of  the  commissioner  of  public  lands,  the  pre-emptioner  was 
permitted  to  file  his  proofs  identifjdng  the  land  in  the  absence  of 
surveys ;  the  register  and  receiver  were  constituted  a  tribunal  to 
decide  on  the  validity  and  extent  of  such  pre-emption  rights,  and 
their  decision  can  be  impeached  only  by  evidence  of  fraud. 

Wbere  the  misconduct  or  neglect  of  a  public  oflRcer  is  the  sole  cause  why 
an  individual  fails  to  obtain  a  title  under  a  valid  pre-emption  claim, 
equity  will  relieve  him. 

Under  the  acts  above  mentioned  the  pre-emption  riglit  is  limited  to  tlie 
fractional  quarter-section  on  which  his  improvements  were  made, 
and  does  not  extend  to  adjoining  fractions  not  exceeding  one  hun- 
dred and  sixty  acres. 

The  act  of  June  15,  1832  (4  Stats,  at  Large,  531),  granting  land  to  the 
Territory  of  Arkansas,  did  not  affect  a  pre-emption  right  then  duly 
proved. 

7 


98  Lytle  v.  The  State  of  Arkansas. 

.     The  case  is  stated  in  the  opinion  of  the  court. 

Badger  and  Lav:rencp  for  the  plaintiff":  Seb(isti((v.  contra. 

McLean,  J.,  delivered  the  opinion  of  the  court. 

This  writ  of  error  brings  before  us  a  decree  of  the  Supreme 
Court  of  the  State  of  Arkansas. 

The  complainants  filed  their  bill  in  the  Pulaski  Circuit  Court  of 
that  State,  charging  that  Nathan  Cloyes.  their  ancestor,  during  his 
life,  claimed  a  right  of  pre-emption  under  the  act  of  Congress  of 
the  29th  of  May,  1830,  to  the  northwest  fractional  quarter  of 
section  numbered  two,  in  township  one,  north  of  range  twelve 
west.  That  he  was  in  possession  of  the  land  claimed  when  tlie 
above  act  was  passed,  and  had  occupied  it  in  1829.  That  he  was 
entitled  to  enter,  by  legal  subdivisions,  any  number  of  acres,  not 
more  than  one  hundred  and  sixty,  or  a  quarter-section,  to  include 
his  improvements,  upon  paying  the  minimum  price  for  said  land. 
That  Cloyes.  in  his  lifetime,  by  his  own  affidavit  and  the  affidavits 
of  others,  made  proof  of  his  settlement  on,  and  improvement  of, 
the  above  fractional  quarter,  according  to  the  provisions  of  the 
above  act.  to  the  satisfaction  of  the  register  and  receiver  of  said 
land  district,  agreeably  to  the  rules  prescribed  by  the  Commis- 
sioner of  the  General  Land  Office  ;  and  on  the  20th  of  May.  1831. 
Hartwell  Boswell,  the  register,  and  John  Redman,  the  receiver, 
decided  that  the  said  Cloyes  was  entitled  to  the  pre-emption  right 
claimed.  That  on  the  same  day  he  applied  to  the  register  to  enter 
the  northwest  fractional  quarter  of  section  two,  containing  thirty 
acres  and  eighty-eight  hundredths  of  an  acre  ;  also  the  northeast 
fractional  (quarter  of  the  same  section,  containing  forty-two  acres 
and  thirty -two  hundredths  of  an  acre  ;  and  also  the  northwest 
and  northeast  fractional  quarters  of  section  numbered  one.  in  the 
same  township  and  range,  containing  thirty-five  acres  and  forty- 
one,  hundredths  of  an  acre,  the  said  fractional  quarter-sections 
containing  one  hundred  and  eight  acres  and  sixty-one  hundredths 
of  an  acre,  and  oftered  to  pay  the  United  States  and  tendered 
to  the  receiver  the  sum  of  f  13o.76|,  the  government  price  for  the 
land  ;  but-  the  register  refused  to  permit  the  said  ClojJ^es  to  enter 
the  land,  and  the  receiver  refused  to  receive  payment  for  the  same, 
on  the  ground  that  he  could  only  enter  the  quarter-section  on 
which  his  improvement  was  made. 

That  the  other  quarter-sections  were  contiguous  to  the  one  he 
occupied. 


Lytle  ?;.  The  State- of  Arkansas.  99 

That  inider  the  act  of  the  25th  of  June,  1832  (4  Stats,  ot  Large, 
549),  entitled  "An  act  establishing  land  viistriots  in  the  TTomtory 
of  Arkansas,'"  the  above  fractional  sections- .of.  land  were  trans- 
ferred to  the  Arkansas  land  district,  and  the  land  iiW^ewas  located 
at  Little  Rock,  to  which  the  papers  in  relation  to  this  »'1piti^  of  |Jre- 
eniption  were  transmitted. 

The  bill  further  states  that  under  an  act  of  Congress  of  the  1 5th 
of  June,  1832,  granting  to  the  Territory  of  Arkansas  one  thousand 
acres  of  land  for  the  erection  of  a  court-house  and  jail  at  Little 
Rock,  and  under  -  An  act  to  authorize  the  governor  of  the  terri- 
tory to  sell  the  land  granted  for  a  court-house  and  jail,  and  for 
other  purposes,"  dated  2d  March,  1833,  John  Pope,  then  governor 
of  said  territory,  among  other  lands,  selected,  illegally  and  by 
mistake,  for  the  benefit  of  the  territor3%  the  said  northwest  frac- 
tional quarter  of  section  numbered  two,  for  which  a  patent  was 
issued  to  the  governor  of  the  territory  and  his  successors  in  office 
for  the  purposes  stated. 

That  the  said  John  Pope,  as  governor,  under  an  act  granting 
a  quantity  of  land  to  the  Territory  of  Arkansas  for  the  erection 
of  a  pu])lic  building  at  the  seat  of  government  of  said  territory, 
dated  2d  March,  1831  (4  Stats,  at  Large,  473),  and  an  act 
to  authorize  the  governor  of  the  territory  to  select  ten  sections  to 
build  a  legislative  house  for  the  territory,  approved  4th  July,  1832 
(4  Stats,  at  Large,  563),  selected  the  northeast  fractional  quarter 
of  section  two,  and  the  northwest  fractional  quarter  and  north- 
east fractional  quarter  of  section  one,  as  unappropriated  lands  : 
and,  having  assigned  the  same  to  William  Russell,  a  i)atent  to  him 
was  issued  therefor  on  or  about  the  21st  of  May,  1834,  both  of 
which,  the  complainants  allege,  were  issued  in  mistake  and  in 
violation  of  law,  and  in  fraud  of  the  legal  and  vested  right  of 
their  ancestor,  Cloj'es. 

That  after  the  refusal  of  the  receiver  to  receive  payment  for 
the  land  claimed,  an  act  was  approved,  14th  July,  1832.  continu- 
ing in  force  the  act  of  the  2yth  of  ]\Iay,  1830.  and  which  speciallj- 
provided,  that  those  who  had  not  been  enabled  to  enter  the  land, 
the  pre-emption  right  of  which  they  claimed,  within  the  time 
limited,  in  consequence  of  the  public  surveys  not  having  been  made 
and  returned,  should  have  the  right  to  enter  said  lands  on  the 
same  conditions,  in  ever}^  respect,  as  prescribed  in  said  act.  within 
one  year  after  the  survey  should  be  made  and  returned,  and  the 
occupants  upon  fractions  in  like  manner  to  enter  the  same,  so  as  not 


100  Lytle  v.  The  ST:ATCi  op  Arkansas. 

to  ex;cee(i  in  quantity  one  quarter-section.  And  that  this  act  was 
in  fulji  force  before  Governor  Pope  selected  said  lands,  as  aforesaid. 
That  the  public  .surveys  of  the  above  fractional  quarter-sections 
weivs  .made;  and  perfected  on  or  about  the  1st  of  December,  1833, 
and  retarded  to  the  land  office  the  beginning  of  the  year  1834. 
On  the  5th  of  March,  1834.  the  complainants  paid  into  the  land 
office  the  sum  of  f  135.76|,  in  full  for"the  above-named  fractional 
quarter-sections.  That  a  certificate  was  granted  for  the  same,  on 
which  the  receiver  indorsed,  that  the  northwest  fractional  quarter 
of  section  two  was  a  part  of  the  location  made  by  Governor  Pope 
in  selecting  one  thousand  acres  adjoining  the  town  of  Little  Pock, 
granted  by  Congress  to  raise  a  fund  for  building  a  court-house 
and  jail  for  the  territorj^ ;  and  that  that  indorsement  was  made 
by  direction  of  the  Commissioner  of  the  General  Land  Office. 

That  the  register  of  the  land  office  would  not  permit  the  said 
fractional  quarter-section  to  be  entered. 

That  the  patentees  in  both  of  said  patents,  at  the  time  of  their 
application  to  enter  the  lands,  had  both  constructive  and  actual 
notice  of  the  right  of  Cloyes.  And  that  the  present  owners  of 
any  part  of  these  lands  had  also  notice  of  the  rights  of  the 
complainants. 

The  answer  of  the  Real  P^state  Bank  and  trustees  admits  the  proof 
of  the  pre-emption  claim  of  Cloyes,  but  they  say  :  "From  begin- 
ning to  the  end  it  is  at  issue  (a  tissue)  of  fraud,  falsehood,  and 
perjury,  not  only  on  the  part  of  Cloyes.  but  also  on  the  part  of  those 
persons  by  whose  oaths  the  alleged  pre-emption  was  established. 
And  they  allege,  that  the  lots  four,  five,  and  six,  in  block  eight, 
in  fractional  quarter-section  two.  claimed  by  the  bank,  were  pur- 
chased of  Ambrose  H.  Sevier  in  the  most  perfect  good  faith,  and 
without  any  notice  or  knowledge  whatever,  either  constructive  or 
otherwise,  of  any  adverse  claim  thereto."'  That  they  have  made 
improvements  on  the  same,  wliich  have  cost  $2.5.000,  without  ever 
having  it  intimated  to  them  that  there  was  any  adverse  claim, 
until  all  of  said  improvements  had  been  completed. 

James  »S.  Conway,  in  his  answer,  denies  the  validity  of  the  pre- 
emption right  set  up  in  the  bill,  and  alleges  that  it  was  falsely  and 
fraudulenty  proved.  And  he  says,  that  when  he  purchased,  "  he 
did  not  know  that  there  was  any  bona  fide  adverse  claim  or  right 
to  said  lots,  or  any  of  them ;  and  he  avers,  that  he  is  an  innocent 
purchaser  for  a  valuable  consideration,  and  without  actual  or 
implied  notice,  except  as  hereinafter  stated." 


Lytle  v.  The  State  of  Arkansas.  101 

And  he  admits  that  he  occasionally  heard  the  claim  of  Cloyes 
spoken  of.  but  always  with  tlie  qualification  that  it  was  fraudulent 
and  void,  and  had  l)een  rejected  by  the  government. 

Samuel  A.  Hempstead,  in  his  answer,  denies  that,  at  the  time  of 
the  purchase  of  said  lots,  or  the  recording  of  said  deed,  he  had 
notice  either  in  fact  or  law,  of  the  complainants"  claim. 

The  other  defendants  filed  special  demurrers  to  the  bill.  The 
circuit  court,  as  it  appears,  sustained  the  demurrers,  and  in  effect 
dismissed  the  bill.  The  cause  was  taken  to  the  Supreme  Court 
of  Arkansas  by  a  writ  of  error,  which  affirmed  the  decree  of  the 
circuit  court. 

The  demurrers  admit  the  truth  of  the  allegations  of  the  bill, 
and  consequently,  rest  on  the  invalidity  of  the  right  asserted  by 
the  complainants.  The  answers  also  deny  that  Cloyes  was 
entitled  to  a  pre-emptive  right,  and  a  part,  if  not  all  of  them, 
allege  that  they  were  innocent  purchasers,  for  a  valuable  consider- 
ation, without  notice  of  the  complainants"  claim. 

The  first  section  of  the  act  of  29th  May,  1830,  gave  to  every 
occupant  of  the  public  lands  prior  to  the  date  of  the  act,  and  who 
had  cultivated  any  part  thereof  in  the  year  1829,  a  right  to 
enter  at  the  minimum  price,  by  legal  subdivisions,  any  number  of 
acres  not  exceeding  one  hundred  and  sixty,  or  a  quarter-section, 
to  include  his  improvement :  provided  the  land  shall  not  have  been 
reserved  for  the  use  of  the  United  vStates.  or  either  of  the  several 
States. 

In  the  third  section  of  the  act  it  is  provided,  that,  before  any 
entries  being  made  under  the  act,  proof  of  settlement  or  improve- 
ment shall  be  made  to  the  satisfaction  of  the  register  and  receiver 
of  the  land  district  in  which  the  lands  may  lie,  agreeably  to  the 
rules  prescribed  by  the  Commissioner  of  the  General  Land  Office 
for  that  purpose. 

On  the  10th  of  June.  18,30.  the  commissioner  issued  his  instruc- 
tions to  the  receivers  and  registers  under  the  above  act,  in  which 
he  said,  that  the  fact  of  cultivation  and  possession  required 
"  must  be  established  by  the  affidavit  of  the  occupant,  supported 
by  such  corroborative  testimony  as  may  be  entirely  satisfactory 
to  both  ;  the  evidence  must  be  taken  by  a  justice  of  the  peace  in 
the  presence  of  the  register  and  receiver.""  And  the  commissioner 
directed,  that,"  where  the  improvement  was  wholly  on  a  quarter- 
section,  the  occupant  was  limited  to  such  quarter ;  but  where  the 
improvement  is  situated  in  different  quarter-sections  adjacent,  he 


102  Lytlb  v.  The  State  of  Arkansas. 

may  enter  a  half  quarter  in  each  to  embrace  his  entire  improve- 
ment. 

Another  circular,  dated  7th  February,  1831,  was  issued,  instruc- 
ting the  land  officers,  where  persons  claiming  pre-emption  rights 
had  been  prevented  under  the  above  circular  from  making  an  entry, 
"by  reason  of  the  township  plats  not  having  been  furnished  by 
the  surveyor  general  to  the  register  of  the  land  office,  the  parties 
entitled  to  the  benefit  of  said  act  may  be  permitted  to  file  the 
proof  thereof,  under  the  instructions  heretofore  given,  identifying 
the  tract  of  land  as  well  as  circumstances  will  admit,  any  time 
prior  to  the  .30th  of  INIay  next."  And  they  were  requested  to 
"keep  a  proper  abstract  or  list  of  such  cases  wherein  the  proof 
shall  be  of  a  character  sufficient  to  establish  to  their  entire  satisfac- 
tion the  right  of  the  parties,  respectively,  to  a  pre-emption,"'  &c. 
"  No  payments,  however,  were  to  be  received  on  account  of  pre- 
emption rights  duly  established,  in  cases  where  the  townships 
were  known  to  be  surveyed,  but  the  plats  whereof  were  not  in 
their  office,  until  they  shall  receive  further  instructions." 

Under  this  instruction,  on  the  28th  of  May.  1831,  the  register 
and  receiver  held  that  Nathan  Cloyes  was  entitled  to  the  north- 
west fractional  quarter,  as  stated  in  the  bill,  but  rejected  the  privi- 
lege of  entering  the  adjoining  fractions. 

Several  objections  are  made  to  this  procedure.  It  is  contended 
that  the  laud  officers  had  no  authority  to  act  on  the  subject, 
until  the  surveys  of  the  township  were  returned  by  the  surveyor 
general  to  the  register's  office  ;  and  also,  that  in  receiving  the 
proof  of  the  pre-emption  right  of  Cloyes.  the  land  officers  did  not 
follow  the  directions  of  the  commissioner. 

The  first  instruction  of  the  commissioner,  dated  10th  June, 
1830,  required  the  proof  to  be  taken  in  presence  of  the  register 
and  receiver,  and  it  appears  that  the  proof  was  taken  in  the  pres- 
ence of  the  register  only. 

The  law  did  not  require  the  presence  of  the  land  officers  when 
the  proof  was  taken,  but,  in  the  exercise  of  his  discretion,  the 
commissioner  required  the  proof  to  be  so  taken. 

Having  the  power  to  impose  this  regulation,  the  commissioner 
had  the  power  to  dispense  with  it.  for  reasons  which  might  be 
satisfactory  to  him.  And  it  does  appear  that  the  presence  of  the 
register  only,  in  Cloyes'  case,  was  held  sufficient.  '  The  right  was 
sanctioned  by  both  the  land  ofticers,  and  by  the  commissioner 
also,  so  far  as  to  receive  the  money  on  the  land  claimed,  without 


Lytle  v.  The  State  of  Arkansas.  103 

objection  as  to  the  mode  of  taking  tlie  proof.  And  as  regards 
the  authority  for  this  procedure  by  the  land  officers,  it  appears  to 
be  covered  by  the  above  circular  of  the  commissioner,  dated  7th 
February.  1831.  In  the  absence  of  the  surveys,  the  parties 
entitled  to  the  benefits  of  the  act  of  1830,  were  "  permitted  to  file 
the  proof  thereof,"  &c.,  identifying  the  tract  of  land,  as  well  as 
circumstances  will  admit,  any  time  prior  to  the  30th  of  May,  1831. 
The  register  and  receiver  were  constituted,  by  the  act,  a  tribunal 
to  determine  the  rights  of  those  who  claimed  pre-emptions  under 
it.  From  their  decision  no  appeal  was  given.  If,  therefore,  they 
acted  within  their  powers,  as  sanctioned  by  the  commissioner, 
and  within  tlie  law,  and  the  decision  cannot  be  impeached  on  the 
ground  of  fraud  or  unfairness,  it  must  be  considered  final.  The 
proof  of  the  pre-emption  right  of  Cloyes  being  '•  entirely  satisfac- 
tory "  to  the  land  officers  under  the  act  of  1830.  there  was  no 
necessity  of  opening  the  case,  and  receiving  additional  proof, 
under  any  of  the  subsequent  laws.  The  act  of  1830,  having 
expired,  all  rights  under  it  were  saved  by  the  subsequent  acts. 
Under  those  acts,  Cloyes  was  only  required  to  do  what  was  neces- 
sary to  perfect  his  right.  But  those  steps  within  the  law.  which 
had  been  taken,  were  not  required  to  be  again  taken. 

It  is  a  well-established  principle,  that  where  an  individual  in  the 
prosecution  of  a  right  does  everything  which  the  law  requires 
him  to  do.  and  he  fails  to  attain  his  right  by  the  misconduct  or 
neglect  of  a  public  officer  the  law  will  protect  him.  In  this  case, 
the  pre-emptive  right  of  Cloyes  having  been  proved,  and  an  offer 
to  pay  the  money  for  the  land  claimed  by  him.  under  the  act  of 
1830,  nothing  more  could  be  done  by  him,  and  nothing  more 
could  be  required  of  him  under  that  act.  And  subsequently, 
when  he  paid  the  money  to  the  receiver,  under  subsequent  acts, 
the  surveys  being  returned,  he  could  do  nothing  more  than  offer 
to  enter  the  fractions,  which  the  register  would  not  permit  him  to 
do.  This  claim  of  pre-emption  stands  before  us  in  a  light  not 
less  favorable  than  it  would  have  stood  if  Cloyes  or  his  repre- 
sentatives had  been  permitted  by  the  land  officers  to  do  what,  in 
this  respect,  was  offered  to  be  done. 

The  claim  of  a  pre-emption  is  not  that  shadowy  right  which  by 
some  it  is  considered  to  be.  Until  sanctioned  by  law,  it  has  no 
existence  as  a  substantive  right.  But  when  covered  by  the  law, 
it  becomes  a  legal  right,  subject  to  be  defeated  only  by  a  failure 
to  perform  the  conditions   annexed  to  it.     It  is  founded  in  an 


104  Lytle  v.  The  State  of  Arkansas. 

enlightened  public  policy,  rendered  necessary  by  the  enterprise 
of  our  citizens.  The  adventurous  pioneer,  who  is  found  in  advance 
of  our  settlements,  encounters  manj'  hardships,  and  not  unfre- 
quently  dangers,  from  savage  incursions.  He  is  generally  poor, 
and  it  is  fit  that  his  enterprise  should  be  rewarded  by  the  privi- 
lege of  purchasing  the  favorite  spot  selected  by  him,  not  to  exceed 
160  acres.  That  this  is  the  national  feeling  is  shown  by  the  course 
of  legislation  for  many  years.  It  is  insisted  that  the  pre-emption 
right  of  Cloyes  extended  to  the  fractional  quarter-sections  named 
in  the  bill,  the  whole  of  them  being  less  than  160  acres.  We 
think  it  is  limited  to  the  fractional  quarter  on  which  his  improve- 
ment was  made.  This  construction  was  given  to  the  act  by  the 
commissioner  in  his  circular  of  the  10th  of  June,  1830.  He 
says:  "The  occupant  must  be  confined  to  the  entry  of  that 
particular  quarter-section  which  embraces  the  improvement." 
The  act  gives  to  the  occupant  whose  claim  to  a  pre-emption  is 
established  the  right  to  entry,  at  the  minimum  price,  by  legal 
subdivisions,  any  number  of  acres  not  exceeding  160.  But  less 
than  a  legal  subdivision  of  a  section  or  fraction  cannot  be  taken 
by  the  occupant.  It  is  contended,  however,  that  several  frac- 
tional quarter-sections  adjacent  to  the  one  on  which  the  improve- 
ment was  made,  may  be  taken  under  the  pre-emptive  right,  which 
shall  not  exceed  in  the  whole  160  acres. 

And  the  second  section  of  the  act  of  14th  July,  18.32,  which 
provides,  "  that  the  occupants  upon  fractions  shall  be  permitted, 
in  like  manner,  to  enter  the  same  so  as  not  to  exceed  in  quantity 
one  quarter-section,"  it  is  urged,  authorizes  this  view.  But  in 
the  case  of  Broions  Lessee  v.  Clements  et  al.,  3  How.,  666,  this 
court  say.  the  act  of  29th  May,  1830,  "gave  to  every  settler  on 
the  public  lands  the  right  of  pre-emption  of  160  acres  ;  yet,  if  a 
settler  happened  to  be  settled  on  a  fractional  section,  contaiuing 
less  than  that  quantity,  there  is  no  provision  in  the  act  by  which 
he  could  make  up  the  deficiency  out  of  the  adjacent  lands,  or  any 
other  lands." 

Did  the  location  of  Governor  Pope,  under  the  acts  of  Congress, 
affect  the  claim  of  Cloyes  ?  On  the  1.5th  of  June,  1832.  one  thou- 
sand acres  of  land  were  granted,  adjoining  the  town  of  Little 
Rock,  to  the  Territory  of  Arkansas,  to  be  located  by  the  governor. 
This  selection  was  not  made  until  the  30th  of  January,  1833. 
Before  the  grant  was  made  by  Congress  of  this  tract,  the  right  of 
Cloyes  to  a  pre-emption  had  not  onlj'  accrued,  under  the  provisions 


Lytle  v.  The  State  of  Arkansas.  105 

of  the  act  of  1830,  but  lie  had  proved  his  riojht.  under  the  law.  to 
the  satisfaction  of  the  reiiister  and  receiver  of  the  land  office. 

He  had.  in  fact,  done  everythino;  he  could  do  to  perfect  this 
riffht.  No  fault  or  ne2;ligence  can  be  charged  to  him.  In  tlie 
case  above  cited  from  3  Howard,  the  court  say  :  "  The  act  of  the 
29th  May,  1830.  appropriated  the  quarter-section  of  land  in  con- 
troversy, on  which  Etheridge  was  then  settled,  to  liis  claim,  under 
the  act,  for  one  year,  subject,  however,  to  be  defeated  by  his  fail- 
ure to  comply  with  its  provisions.  During  that  time,  this  quarter- 
section  was  not  liable  to  any  other  claim."  &c.  And  the  supple- 
ment to  this  act.  approved  14th  July,  1832.  extended  its  benefits. 
The  instruction  of  the  commissioner,  dated  September  14,  1830. 
was  in  accordance  with  this  view.  He  says  :  •■  It  is.  therefore,  to 
be  expressly  understood,  that  every  purchase  of  a  tract  of  land  at 
ordinary  private  sale,  to  which  a  pre-emption  claim  shall  be  proved 
and  filed  according  to  law.  at  any  time  prior  to  the  30th  of  May. 
1831,  is  to  be  either  null  and  void,  (the  purchase-money  thereof 
being  refundable  under  instructions  hereafter  to  be  given),  or  sub- 
ject to  any  legislative  provisions." 

By  the  grant  to  Arkansas.  Congress  could  not  have  intended  to 
impair  vested  rights.  The  grants  of  the  thousand  acres  and  of 
the  other  tracts  must  be  so  construed  as  not  to  interfere  with  the 
pre-emption  of  Cloyes. 

The  Supreme  Court  of  the  State,  in  sustaining  the  demurrers 
and  dismissing  the  bill,  decided  against  the  pre-emption  riglit 
claimed  by  the  representatives  of  Cloyes  ;  and  as  we  consider 
that  a  valid  right,  as  to  the  fractional  quarter  on  which  his  improve- 
ment was  made,  the  judgment  of  the  State  court  is  reversed  :  and 
the  cause  is  transmitted  to  that  court  for  further  proceedings 
before  it,  or  as  it  shall  direct,  on  the  defence  set  up  in  the  answers 
of  the  defendants,  that  they  are  bona  fide  purchasers  of  the  whole 
or  parts  of  the  fractional  section  in  controversy,  without  notice, 
and  that  that  court  give  leave  to  amend  the  pleadings  on  both 
sides,  if  requested,  that  the  merits  of  the  case  may  be  fully  pre- 
sented and  proved,  as  equity  shall  require. 

Catron.  J.,  Nelson,  J.,  and  Gkiku.  J.,  dissented. 

Catkon,  J.  The  complainants  allege  that  they  have  the  supe- 
rior equity  to  the  fractional  quarter-section  No.  2.  and  to  the 
other  lauds   claimed  bv  the  bill,   bv  virtue  of  an    entry  under 


106  Lytle  v.  The  State  of  Arkansas. 

a  preference  right ;  and  that  the  respondents  pnrchased  and  took 
their  legal  title  with  full  knowledge  of  such  existing  equity  in 
the  complainants. 

1.  The  defendants  claiming  section  No.  2  (or  part  of  it)  deny 
that  any  such  equity  exists  under  the  legislation  of  Congress. 
2.  That  they  purchased  and  took  title  without  any  knowledge  of 
the  claim  set  up  ;  and  being  innocent  purchasers,  no  equity  exists 
as  to  them  for  this  reason  also,  regardless  of  anything  alleged 
against  them.  3.  That  they  expended  large  sums  on  the  lands 
purchased,  and  made  highly  valuable  imi)rovements  thereon, 
without  any  objection  being  made  by  complainants,  or  notice  of 
their  claim  being  given  to  respondents,  and  therefore  a  court  of 
equity  cannot  interfere  with  their  existing  rights. 

The  bill  was  dismissed  without  any  particular  ground  having 
been  stated  in  the  decree  why  it  was  made  for  respondents  ;  and 
in  this  condition  of  the  records,  the  cause  is  brought  here  by  writ 
of  error  under  the  25th  section  of  the  judiciary  act.  (1  Stats,  at 
Large.  85.) 

The  case  made  on  the  face  of  the  bill  was  rejected,  and  the 
inquiry  on  such  general  decree  must  be,  whether  the  claim  set  up 
sought  protection  under  an  act  of  Congress,  or  an  authority  exer- 
cised under  one,  so  as  to  draw  either  in  question,  no  matter 
whether  the  claim  was  well  founded  or  not,  and  the  fact  being 
found  that  such  ease  was  made,  then  jurisdiction  must  be 
assumed  to  examine  the  decree  ;  and,  this  being  clearly  true  in 
the  present  instance,  jurisdiction  must  be  taken,  and  the  equity 
claimed  on  part  of  complainants  re-examined. 

If,  however,  the  decree  had  proceeded  on  the  second  or  thii'd 
grounds  of  defence,  regardless  of  the  first,  and  had  so  declared, 
then  this  court  would  not  have  jurisdiction  to  interfere,  as  no  act 
of  Congress,  or  an  authority  exercised  under  it,  would  have  been 
drawn  in  question. 

In  regard  to  the  lands  claimed,  except  the  fractional  quarter - 
section  No.  2,  we  are  agreed  that  the  bill  should  be  dismissed. 
So  far,  the  controversy  is  ended  ;  and,  as  to  section  No.  2, 1  think 
the  bill  should  be  dismissed  also. 

The  proof  of  occupancy  and  cultivation  was  made  in  April, 
1831.  under  the  act  of  1830,  pursuant  to  an  instruction  from  the 
Commissioner  of  the  General  Land  Office,  having  reference  to 
that  act.     The  act  itself,  the  instruction  given  under  its  authority. 


Lytle  v.  The  State  of  Arkansas.  107 

and  the  i)roofs  taken  according  to  the  instructions,  expired  and 
came  to  an  end  on  the  29th  of  May,  1831. 

After  that  time,  tlie  matter  stood  as  if  neither  had  ever  existed  \ 
nor  had  Cloyes  more  claim  to  enter  from  May  29.  1831.  to  July 
14.  1832.  than  any  other  villager  in  Little  Rock. 

July  14,  1832,  another  pre-emption  law  was  passed,  providing, 
among  other  things,  that  when  an  entry  could  not  be  made  under 
the  act  of  1830,  because  the  public  surveys  were  not  returned  to 
the  office  of  the  register  and  receiver  before  the  expiration  of 
that  act  (29th  INIay,  1831).  then  an  occupant  who  cultivated  the 
land  in  1829,  and  was  in  actual  possession  when  the  act  of  1830 
was  passed,  sliould  be  allowed  to  enter,  under  the  act  of  1832, 
the  quarter-section  he  occupied ;  and  also  adjoining  lands  to 
which  the  improvement  extended,  in  legal  subdivisions,  so  as  to 
increase  his  entry  to  a  quantity  not  exceeding  160  acres.  Under 
the  act  of  1832.  the  entry  in  controversy  was  offered,  and  after- 
wards allowed,  for  the  purpose  of  letting  in  complainants,  so 
that  a  court  of  justice  might  investigate  their  claim,  although  it 
had  been  pronounced  illegal  at  the  department  of  public  lands, 
the  officers  there  acting  under  the  advice  of  the  Secretary  of  the 
Treasury. 

The  act  of  1830.  and  the  circular  under  it,  having  expired,  the 
commissioner  issued  a  new  circular  (28th  July,  1832.  2  Land 
Laws  and  Opinions,  509).  prescribing  to  registers  and  receivers 
the  terms  on  which  entries  should  be  allowed  under  the  act  of 
1832,  by  which  circular  proof  was  required  of  cultivation  in 
1829,  and  residence  on  the  29th  of  May.  1830,  and  that  this 
proof  should  be  made  after  the  legal  surveys  were  returned  to 
the  office  of  the  register  and  receiver  ;  and  the  right  to  make  the 
proof,  and  to  enter,  should  continue  for  one  year  after  the  sur- 
veys were  returned,  unless  the  lands  were  sooner  offered  at  pulilic 
sale  ;  and  that  thfen  the  entry  should  be  made  before  the  public 
sale  took  place. 

The  necessity  of  this  new  proceeding  is  manifest.  By  the  act 
of  April  5,  1832  (4  Stats,  at  Large,  503),  all  actual  settlers  at 
this  date  (5th  April.  1832).  were  authorized  to  enter,  within  six 
months  thereafter,  one  half  quarter-section,  including  their 
respective  improvements.  Such  rights  stood  in  advance  of  claim- 
ants under  the  act  of  July  14,  1832.  In  the  mutations  of  a  new 
country,  the  fact  was  well  known  that  improvements  passed 
from   hand  to    hand  with  great  frequency  by   the   sale  of  the 


108  Lytle  v.  The  State  of  Arkansas. 

possessions  ;  and  one  in  possession  (April  5.  1832.)  could  well 
enter  an  im|>rovement  cultivated  in  1829,  and  held  on  the  29th  of 
Ma}',  1830.  he  having  purchased  such  possession.  If  Cloyes, 
therefore,  had  sold  out  to  another  before  the  act  of  April  5  was 
passed,  then  that  other  occupant,  and  not  Cloyes.  would  have 
had  the  right  to  enter  section  No.  2  ;  and.  therefore,  it  was  highly 
necessary  to  know  who  had  the  best  right  to  ft  pre-emption  at  the 
time  each  entry  was  offered.  A  still  greater  necessity  existed 
for  new  proof.  Until  the  surveys  were  returned,  it  was  usvially 
impossible  for  the  register  and  receiver  to  know  what  subdivision 
had  been  occupied,  or  to  what  land,  or  how  much,  the  pre-emption 
right  extended ;  and  as  all  those  who  had  a  right  of  entry  on 
lands  not  surveyed,  and  legally  recognized  as  surveyed,  were 
provided  for  by  the  act  of  14th  of  July,  1832,  and  the  act  required 
them  to  make  proof,  and  to  enter,  within  one  year  after  the  sur- 
veys were  returned,  by  legal  subdivisions,  according  to  the  sur- 
veys, it  is  hardly  possible  to  conceive  what  other  course  could 
have  been  adopted  at  the  land  office  than  that  which  was  pursued, 
as  the  survej^s  were  the  sole  guide  at  the  local  offices  where 
entries  were  made.  But  it  is  useless  to  speculate  why  the 
new  circular  was  issued  :  the  commissioner  had  positive  power  to 
do  so,  and  the  act,  when  done,  bound  every  enterer.  Nor  could  a 
legal  entry  be  made  under  the  act  of  14th  of  July,  1832.  without 
the  new  proof,  and  an  adjudication  liy  the  register  and  receiver, 
founded  on  such  proof,  that  the  right  of  entry  existed,  and  as 
no  such'proof  was  offered  by  the  complainants,  they  had  no  right 
to  enter  even  the  30  88-100  acres,  and  certainly  not  the  108  61-100 
acres.  That  an  entry  could  not  be  lawfully  made,  without  new 
proof  to  warrant  it,  for  the  larger  quantity,  is  our  unanimous 
opinion  ;  and  in  this,  we  concur  with  those  conducting  the  Gen- 
eral Land  Office. 

For  another  reason  I  think  their  claim  should  be  rejected. 
Little  Rock  was  the  seat  of  the  territorial  government,  at  which 
certain  public  buildings  were  necessary,  and  on  the  15th  of  June, 
1832,  an  act  was  passed  that  there  be  then  granted  to  the  Territory 
of  Arkansas  a  quantity  of  land  not  exceeding  one  thousand  acres 
"contiguous  to  and  adjoining""  the  town  of  Little  Rock,  for  the 
erection  of  a  court-house  and  jail  in  said  town,  which  lands  shall  be 
selected  by  the  governor  of  the  territory,  and  be  disposed  of  as 
the  legislature  shall  direct,  and  the  proceeds  be  applied  towards 
building  said  court-house  and  jail. 


Lytle  v.  The  State  of  Arkansas.  109 

Ou  the  oOth  of  January,  1833,  the  governor  selected  the  land 
and  filed  his  entry  in  the  land  office  at  Little  Rock,  which  entry 
was  received  and  forwarded  to  the  General  Land  Office  at  Wash- 
ington, and  there  ratified.  The  entry  included  the  factional  quarter- 
section  No.  2,  now  claimed  by  the  heirs  of  Nathan  Cloyes. 

By  the  act  of  March  2,  1833  (1  Stats,  at  Large,  667),  the  gov- 
ernor of  the  territory  was  required  to  furnish  to  the  Secretary 
of  the  Treasury  a  description  of  the  boundaries  of  the  thousand 
acres,  and  the  secretary  was  required  to  cause  to  be  issued  a  patent 
therefor  to  the  governor,  in  trust,  &c. ;  and  the  governor  was 
directed  to  lay  off  in  town  lots,  as  part  of  the  town  of  Little  Rock, 
so  much  of  the  grant  as  he  might  deem  advisable  ;  and  said  gov- 
ernor was  authorized  to  sell  said  lots,  and  to  dispose  of  the  residue 
of  said  thousand  acre  grant,  and  which  sale  was  to  be  at  auction 
as  regarded  the  town  lots  and  the  residue  of  the  land.  And  he 
was  also  authorized  to  select  and  lay  off  three  suitable  squares, 
within  this  addition  to  the  town,  on  which  might  be  erected  a  state- 
house.  a  court-house,  and  a  jail — one  square  for  each  building — for 
the  use  thereof  forever,  and  for  no  other  use. 

The  sales  were  to  be  for  cash,  and  the  governor  was  directed  to 
make  deeds  to  purchasers  when  the  purchase-money  was  paid.  A 
patent  issued  to  Governor  John  Pope  for  the  land.  In  October, 
1833,  he  proceeded  to  sell  at  auction,  in  lots  and  blocks,  the  frac- 
tion No.  2,  in  part,  to  Ambrose  H.  Sevier,  under  whom  most  of 
the  defendants  ou  No.  2  claim.  Those  who  have  answered  deny 
that  they  had  any  knowledge  of  the  claim  of  Cloyes  when  they  pur- 
chased and  took  title  ;  and  that  complainants  stood  by,  permitted 
the  purchase,  and  saw  great  city  improvements  made  and  large 
sums  of  money  expended  without  objection  or  any  intimation 
being  given  that  they  intended  to  In-ing  forward  any  such  claim 
as  the  one  now  set  up.  But.  as  remarked  in  the  outset,  this  court 
has  no  jurisdiction  of  these  matters,  and  must,  therefore,  leave 
them  to  the  State  courts  for  adjudication  and  final  settlement. 

How,  then,  did  the  claim  of  complainants  stand  when  the  city 
lots  were  sold  in  1833  ?  Cloyes  never  offered  to  enter  fraction 
No.  2  alone.  He  offered  to  enter,  says  the  bill  (28th  May,  1831), 
with  the  register  at  Batesville  sectional  quarter  No.  2  for  30.88 
acres,  northeast  fractional  quarter  for  42.32  acres,  and  northwest 
and  northeast  fractional  quarters  of  section  No.  1.  containing 
35.41  acres,  making  in  all  108.61  acres.  The  proof  made  was 
that  he  resided  on  No.  2  for  30.88  acres.     This  entry  was  refused 


110  Lytle  v.  The  State  of  Arkansas. 

on  Ji  ground  not  o])en  to  controversy.  By  the  act  of  1830  only 
that  quarter-section  on  which  the  improvement  was  could  be 
entered,  no  matter  what  quantity  it  contained.  In  this  we  are 
unanimous  now  ;  and  also  that  the  entry  allowed  is  void  for  all 
but  the  fraction  No.  2.  Here  was  an  offer  to  enter  in  1831  that 
could  not  be  lawfully  done  at  that  time.  Then  a  refusal  to  receive 
the  entry  was  proper.  The  claim  to  enter  108.61  acres  was  adhered 
to  throughout  by  Cloyes  and  his  heirs.  The  offer  to  enter  the  whole 
quantit}'  of  108.61  acres  was  again  made  in  1834.  and  we  agree 
in  opinion  that  the  entrj'^  could  not  be  lawfully  received  at  the 
latter  period  for  this  larger  quantity ;  less  than  the  whole  was 
never  claimed. 

As  already  stated,  the  entry  that  was  admitted  in  1834  was 
made  to  enable  the  party  to  litigate  his  rights,  if  any  existed,  as 
against  the  city  title  :  not  because  the  claim  to  enter  was  lawful 
in  the  estimation  of  the  Secretary  of  the  Treasury  and  the  Com- 
missioner of  the  General  Land  Office,  for  they  had  decided  against 
its  validity.  The  offer  to  enter  being  illegal,  and  the  entry  as 
received  being  illegal,  it  is  not  })erceived  on  what  ground  a  court 
of  equity  can  uphold  the  claim  even  in  part,  and  thereby  over- 
throw a  patent  of  the  United  States,  and  oust  purchasers  who 
relied  on  such  patent. 

In  the  next  place,  when  the  act  of  June  1.5,  1832,  was  passed, 
authorizing  the  governor  of  Arkansas  Territory  to  locate  the 
thousand  acres,  the  act  of  1830  had  expired;  no  right  of  entry 
existed  in  Cloyes.  The  land  appropriated  to  public  use  was  to 
be  taken  "contiguous  to  and  adjoining  the  town  of  Little  Rock." 
All  the  land  adjoining  was  reserved  by  the  act.  subject  to  a  selec- 
tion by  the  governor  as  a  public  agent.  The  grant  was  a  present 
grant  of  the  thousand  acres,  without  limitation.  Cloyes  had  no 
claim  to  interpose  at  that  time  ;  and  on  the  selection  being  made 
it  gave  precision  to  the  land  granted,  and  the  title  attached  from 
the  date  of  the  act.  In  the  language  of  this  court  in  Rutherford 
V.  Greene's  Heirs,  2  Wheat.,  206,  the  grant  which  issued  to  Gov- 
ernor Pope  in  pursuance  of  the  act  of  June  1.5.  1832,  "relates  to 
the  inception  of  his  title."  That  also  was  a  present  grant  of  25,000 
acres  to  General  Greene,  made  by  an  act  of  the  legislature  of 
North  Carolina,  but  unlocated  by  the  act  of  assembly.  It  was 
granted  in  the  military  district  generally,  and  ordered  to  be  sur- 
vej^ed  by  certain  commissioners.  Soon  afterwards  it  was  located 
by  survey,  and  the  question  presented  to  this  court  was  as  to  what 


Lytle  v.  The  State  of  Arkansas  111 

time  the  title  liad  relation  for  the  land  selected,  when  it  was  held 
that  the  o-rant  was  made  by  the  act  directly,  and  gave  date  to  the 
title,  and  of  necessity  overreached  all  intervening  claims  for  the 
land  selected. 

This  case  is  far  stronger  than  that.     Here,  the  act  of  1830  was 
made  part  of  the  act  of  July  14,   1832;  they  stood  as  one  act, 
and  took  date  on  the  14th  of  Jnly.     The  act  provides  :     "  That 
no  entry  or  sale  should  be  made,  under  the  provisions  of  this 
act.  of  lands  which  shall  have  been  reserved  for  the  use  of  the 
United  States,  or  either  of  the  States."     The  land,  to  the  quantity 
of  one  thousand  acres,  adjoining  the  then  town  of  Little  Rock, 
had  been  expressly  reserved  by  the  act  of  the  15th  of  June,  and 
stood  so  reserved  when  the  act  of  July  14th  was  passed,  subject 
to  selection  in  legal  subdivisions.     The  act  of  June  15  had  no 
exception  ;  the  object  was  of  too  much  importance  to  allow  of 
any.     If  this  villager  could  claim  a  pre-emption,  so  might  any 
other,  and  the  act  of  June  would  have  been  without  value,  as 
the  whole  grant  might  have  been  defeated  by  occupant  claims, 
and  the  seat  of  government  transferred  to  private  owners.     This 
is  manifest.     Cloyes  was  a  tinner,  carrying  on  his  trade  in  the 
edge  of  town,  and  next  his  dAvelling  ;  adjoining  to  his  house  and 
shop  he  cultivated  a  garden,  and  on  this  occupancy  and  cultiva- 
tion  his  claim  was  founded.     Others,  no  doubt,  were  similarly 
situated.     The    seat   of  government   was  located   on  the  public 
lands,  then  unsurveyed.  and  if  the  act  of  July  14,  1832.  conferred 
an  equity  on  Cloyes  to  take  160  acres,  so  it  did  on  others  in  his 
situation,  all  around  the  then  town,  and  adjoining  thereto.     If  the 
occupant  could  take  the  land  adjoining,  how  was  it  possible  for 
the  governor  to  add  lots  and  squares  to  the  seat  of  government  ? 
The  intention  of  Congress  manifestly  contemplated  that  the  right 
of  selection  should  extend  to  all  lands  adjoining  to  the  then  town, 
and  that  these  were  reserved  for  public  use,  is,  in  my  judgment, 
hardly  open  to  controversy^  on  the  face  of  the  act  of  July  14. 
But,    when  we   take    into   consideration   the   fact   that  General 
Greene's  title  had  been  upheld  on  the  principle  that  it  took  date 
with  the  act  making  the  grant,  and  that  the  grant  made  in  trust 
to  Governor  Pope  depended  on  the  same  principle,  and  equally 
overreached  all  intervening  claims,  no  doubt,  it  would  seem,  could 
well  be  entertained,  either  at  the  General  Land  Office,  or  by  pur- 
chaser, that  this  occupant  had  no  just  claims,  and  could  not  inter- 
fere and  overthrow  titles  derived  under  the  act  of  June  15.  1832. 


112  Lytle  v.  The  State  of  Arkansas. 

And  this  is  deemed  equally  true  for  another  and  similar  reason. 
If  this  i)reference  of  entry  for  pnblic  uses  could  be  overthrown 
by  a  subsequent  pre-emption  law.  so  may  every  other  made  to 
secure  locations  for  county  seats  and  public  works.  The  reser- 
vation was  quite  as  definite  as  where  salt  springs  and  lead  mines 
were  reserved,  or  lands  on  which  ship  timber  existed.  In  such 
cases,  the  President  determines  that  the  lands  shall  be  reserved 
from  sale,  and  this  is  always  done  after  the  surveys  are  executed 
and  returned  ;  and.  certainly,  had  such  power  been  vested  in  him 
to  reserve  lands  adjoining  the  seat  of  government  of  Arkansas, 
for  the  use  thereof,  he  could  have  lawfully  made  the  selection  ; 
and  authority'  to  do  so  having  been  conferred  by  Congress  on  the 
governor,  his  power  was  equal  to  that  of  the  President  in  similar 
cases,  where  lands  are  reserved  for  public  use  by  general  laws. 

For  these  reasons.  I  think  the  decree  ought  to  be  affirmed  ;  and 
I  have  the  more  confidence  in  these  views  because  they  corres- 
pond with  the  accumulated  intelligence  and  experience  of  those 
engaged  in  administering  the  department  of  public  lands,  and 
with  the  practice  pursued  at  the  Gneral  Land  Office,  from  the 
date  of  the  act  of  July  14.  1832,  to  this  time. 


Robinson  Lytle  and  (Jtiieks.  plaintiffs  in  error.  /'.  The  St.\.te 
OF  Akkansas  and  Others. 

December  Term,  1859.— 22   Howard,  1!I3;  I]  Miller,  288. 
Jitrisdidion  over  State  Courts — Equiti/  Superior  to  Pateuts. 

1.  'i'he  judgment  oi  the  State  eoiuts  protecting  parties  as  innocent  pur- 

chasers, and  by  reason  of  the  Statute  of  Limitations,  is  not  subject 
to  revision  in  this  court. 

2.  But  tlie  question  of  fraudulent  and  false  swearing  in  obtaining  a  cer- 

tificate of  pre-emption  and  a  patent  from  the  land  ofiice  is  one  of 
which  this  court  can  take  cognizance. 

3.  An  examination  of  tlie  testimonj^  in  this  case  shows  that  the  Supreme 

Court  of  Arkansas  was  right  in  holding  that  tliere  was  sucli  fraud, 
and  its  judgment  is  therefore  aflirmed. 

This  is  a  writ  of  error  to  the  Supreme  Court  of  Arkansas.  It 
has  been  in  this  court  before,  and  has  been  repeated  in  !)  How.. 
314.    As  it  appears  now.  the  matter  is  fully  stated  in  the  opinion. 


J 


Lytle  v.  The  State  of  Arkansas.  113 

Mr.  BrndUy  and  Mr.  StillirplI  for  plaintiffs  in  error  :  Mr.  Wat- 
kins.  Mr.  Pike,  and  Mr.  Hemjisteml  for  defendants. 

Mk.  Justice  Catmon  delivered  the  opinion  of  the  court. 

The  first  question  presented  on  the  record  is,  whether  this  court 
has  jurisdiction  to  examine  and  revise  the  decision  of  the  Supreme 
Court  of  Arkansas  by  writ  of  error,  under  the  25th  section  of  the 
judiciary  act  ?     The  question  arises  on  the  following  facts  : 

Nathan  Cloj-es,  ancestor  of  the  principal  complainants,  entered 
as  an  occupant,  at  a  land  office  in  Arkansas,  a  fractional  quarter- 
section  of  land,  in  1834.  under  the  pre-emption  acts  of  1830  and 
1832.  The  fraction  adjoined  the  village  of  Little  Rock  on  its 
eastern  side,  and  was  for  twenty-nine  acres.  The  same  land  had 
been  patented  in  1833  by  the  United  States  to  John  Pope,  gover- 
nor of  the  Territory  of  Arkansas,  to  ])e  appropriated  to  the  erection 
of  public  buildings  for  said  territory.  The  heirs  of  Cloyes  claimed 
to  have  an  earlier  equity,  by  force  of  their  pre-emption  right,  tlian 
that  of  the  governor  of  Arkansas. 

They  filed  their  bill  in  equity  in  the  proper  State  court  to 
enforce  this  equity.  That  bill  contained  appropriate  allegations 
to  exhibit  an  equitable  title  in  the  plaintiffs,  and  the  opposing 
right  of  the  patentee,  and  thus  to  enable  the  courts  to  compare 
them.  Some  of  the  defendants  demurred  to  the  bill ;  others 
answered,  denying  the  facts  of  the  settlement  and  cultivation, 
and  pleading  the  boR(i  Jides  of  their  purchase  and  the  Statute  of 
Limitations. 

The  courts  of  Arkansas  dismissed  the  bill  in  the  demurrer : 
which  judgment  was  reversed  in  this  court,  and  the  cause  re- 
manded for  further  proceedings.  Lytle  v.  Arkansas,  9  How.,  314. 
It  was  prepared  for  hearing  a  second  time,  and  the  courts  of 
Arkansas  have  again  dismissed  the  bill,  and  the  cause  is  a  second 
time  before  us. 

The  cause  was  fully  heard  on  its  merits  below,  and  the  claim  of 
Cloyes  rejected,  on  the  ground  that  he  obtained  his  entry  by  fraud 
in  fact  and  fraud  in  law  ;  and  the  question  is.  can  we  take  juris- 
diction, and  reform  this  general  decree  ?  It  rejected  the  title  of 
Cloyes  ;  and  in  our  opinion  it  is  not  material  whether  the  inva- 
lidity of  the  title  was  decreed  in  the  Supreme  Court  of  Arkansas 
upon  a  question  of  fact  or  of  law.  Tlie  fact  that  the  title  was 
rejected  in  that  court  authorizes  this  court  to  re-examine  the 
decree.     14  Peters.  360. 


114  Lytle  v.  The  State  of  Arkansas. 

The  decision  in  the  Supreme  Court  of  Arkansas  drew  in  ques- 
tion an  authority  exercised  under  the  United  States,  to-wit :  that 
of  admitting  Cloyes  to  make  his  entry ;  and  the  decision  was 
against  its  validity,  and  overthrew  his  title,  and  is,  therefore,  sub- 
ject to  be  re-examined,  and  reversed  or  affirmed  in  this  court,  on 
all  the  pleadings  and  proofs  which  immediately  respect  the  ques- 
tion of  the  proper  exercise  of  authority  by  the  officers  administer- 
ing the  sale  of  the  public  lands  on  the  part  of  the  United  States. 

In  the  case  of  Martin  against  Hunter's  Lessee  (1  Wheat.,  352), 
the  foregoing  construction  of  the  2.5th  section  of  the  judiciary 
act  of  1789  was  recognized,  and  has  been  followed  since,  in  the 
cases  of  Chotean  against  Eckhart  (2  How..  372),  Cunningham 
against  Ashley  (14  How..  377),  Garland  against  Wyini  (20  How., 
6),  and  other  cases. 

Another  preliminary  question  is  presented  on  this  record, 
namely  :  whether  the  adjudication  of  the  register  and  receiver, 
which  authorized  Cloyes'  heirs  to  enter  the  land,  is  subject  to 
revision  in  the  courts  of  justice,  on  proof,  showing  that  the  entry 
was  obtained  by  fraud  and  the  imposition  of  false  testimony  on 
those  officers,  as  to  settlement  and  cultivation.  We  deem  this 
question  too  well  settled  in  the  affirmative  for  discussion.  It  was 
so  treated  in  the  case  of  Cunningham  against  Ashley  (14  How.. 
377) ;  again,  in  Bernard  against  Ashley  (18  How.,  43) ;  and,  con- 
clusively, in  the  case  of  Garland  against  Wynn  (20  How.,  8.) 

The  next  question  is,  how  far  we  can  re-examine  the  proceed- 
ings in  the  State  courts. 

In  their  answers,  the  respondents  rely  on  the  act  of  limitations 
of  the  State  of  Arkansas  for  protection.  As  this  is  a  defense  hav- 
ing no  connection  with  the  title  of  Cloyes,  this  court  cannot  revise 
the  decree  below  in  this  respect,  under  the  25th  section  of  the 
judiciary  act. 

Many  of  the  defendants  also  relied  in  their  answers  on  the  fact 
that  they  were  bona  fide  purchasers  of  the  lots  of  land  they  are 
sued  for,  and,  therefore,  no  decree  can  be  made  here  to  oust  them 
of  their  possessions.  The  vState  courts  found  that  a  number  of 
the  respondents  were  purchasers  without  notice  of  Cloyes'  claim, 
and  entitled  to  protection  as  bona  fide  purchasers,  according  to 
the  rules  acted  on  by  courts  of  equity.  With  this  portion  of  the 
decree  we  have  no  power  to  interfere,  as  the  defense  set  up  is 
within  the  restriction  found  in  the  concluding  part  of  the  25th 
section,  which  declares  that,  no  other  error  shall  be  assigned  or 


Lytle  v.  The  State  of  Arkansas.  115 

regarded  b}'  this  court  as  a  ground  of  reversal,  than  such  as 
immediately  respects  the  before-mentioned  questions  of  validity 
or  construction  of  the  constitution,  ti'eaties.  statutes,  commissions 
or  authorities  in  dispute.  Mr.  Justice  Story  comments  on  the 
foregoing  restraining  clause,  in  the  case  of  Martin  v.  Himter's 
Lessee  (1  Wheat.,  358),  which  construction  we  need  not  repeat. 

Whether  Cloves  imposed  on  the  register  and  receiver  by  false 
affidavits,  when  he  made  proof  of  cultivation  in  1829,  and  resi- 
dence on  the  land  in  dispute  on  the  29th  of  May,  1830,  is  the 
remaining  question  to  be  examined.  He  made  oath  (23d  April, 
1831.)  that  he  did  live  on  said  tract  of  land  in  the  year  1829.  and 
had  done  so  since  the  year  1826.  Being  interrogated  by  the 
register,  he  stated  :  ••  I  had  a  vegetable  garden,  perhaps  to  the 
extent  of  an  acre,  and  raised  vegetables  of  different  kinds,  and 
corn  for  roasting  ears  :  and  I  lived  in  a  comfortable  dwelling, 
east  of  the  Quapaw  line,  on  the  before-mentioned  fraction." 
Being  asked  :  "  Did  j^ou  continue  to  reside,  and  cultivate  your 
garden  aforesaid,  on  the  before-named  fraction,  until  the  29th  of 
May.  1830  ? "'  he  answers  :  "I  did.  and  have  continued  to  do  so 
until  this  time."' 

John  Saylor  deposed  on  behalf  of  Clo^^es  in  etfect  to  the  same 
facts,  but  in  general  terms.  Nathan  W.  Maynor  and  Elliott 
Bursey  swore  that  the  affidavit  of  Saylor  was  true.  On  the  truth 
or  falsehood  of  these  depositions  the  cause  depends. 

In  opposition  to  these  affidavits  it  is  proved,  beyond  dispute, 
that  Cloyes  and  his  familj'-  resided  at  a  house,  for  a  part  of  the 
year  1828.  occupied  afterwards  ])y  Doctor  Liser.  In  the  latter 
part  of  1828,  they  removed  from  that  place  to  some  log  cabins,  sit- 
uate on  the  lots  afterwards  occupied  by  John  Hutt.  and  where  the 
Governor  of  Arkansas  resided  in  1851,  wheil  the  witnesses 
deposed.  Both  places  were  west  of  the  Quapaw  line — the  cab- 
ins standing  probably  one  hundred  yards  west  of  the  line,  and 
which  line  was  the  western  boundary  of  the  fractional  quarter- 
section  in  dispute.  Cloyes  resided  at  these  cabins  when  he  swore 
at  Batesville.  before  the  register,  and  continued  to  reside  there 
till  the  time  of  his  death,  which  occurred  shortly  after  his  return 
from  Batesville,  say  in  May  or  June,  1831,  and  his  widow  and 
children  continued  to  reside  at  the  same  cabins  for  several  3'ears 
after  his  death.  Clo^-es  was  by  trade  a  tinner,  and  in  December, 
1826,  rented  of  William  Russell  a  small  house  constructed  of 
slabs  set  upright,  in  which  he  carried  on  his  business  of  a  tin- 


116  Lytle  v.  The  State  of  Arkansas. 

plate  worker.  He  covenanted  to  keep  and  retain  possession  for 
Rnssell  of  this  shop  against  all  persons,  and  not  to  leave  the 
honse  nnoccupied.  and  to  pa_y  Russell  two  dollars  per  month 
rent,  and  surrender  the  house  to  Russell  or  his  authorized  agent, 
at  any  time  required  by  the  lessor. 

Under  this  lease.  Cloyes  occupied  the  house  until  the  lilth  day 
of  June.  1828,  when  he  took  a  lease  from  Chester  Ashley  for  the 
same,  and  also  for  a  garden.  He  covenanted  to  pay  Ashley  one 
dollar  per  month  rent,  to  put  and  keep  the  building  in  repair  ;  to 
keep  and  retain  possession  of  the  same  until  delivered  l)ack  to 
said  Ashley  by  mutual  consent,  either  party  having  a  right  to 
terminate  the  lease  on  one  month's  notice.  The  house  and 
o-arden  were  rented  by  the  month. 

Under  this  lease.  Cloyes  occupied  the  house  as  a  tin-shop  to 
the  time  of  his  death.  Both  the  leases  state  that  the  shop  was 
east  of  the  Quapaw  line,  and  on  the  public  lands. 

This  slab  tenement  was  built  by  Moses  Austin,  about  1820. 
On  leaving  Little  Rock  he  sold  it  to  Doctor  Matthew  Cunningham  ; 
it  passed  through  several  hands,  till  it  was  finally  owned  by  Col. 
Ashley.  Buildings  and  cultivated  portions  of  the  public  lands 
were  protected  bj^  the  local  laws  of  the  Arkansas  Territory.  Either 
ejectment  or  trespass  could  have  been  maintained  by  Ashley 
against  Cloyes  to  recover  the  premises  :  nor  could  an  objection 
be  raised  by  any  one.  except  the  United  States,  to  these  transfers 
of  possession  ;  neither  could  Cloyes  be  heard  to  disavow  his  land- 
lord's title.  He  held  possession  for  Ashley,  and  was  subject  to 
be  turned  out  on  a  month's  notice  to  quit. 

Cunningham  and  other  witnesses  depose  that  the  shop  rented 
to  Cloyes  stood  west  of  the  Quapaw  line.  It  however  appears 
from  actual  survey  that  it  was  on  the  section  line,  which  ran 
through  the  house,  taking  its  southeast  corner  on  the  east  side, 
but  leaving  the  greater  part  of  the  shop  west  of  the  line. 

Another  pertinent  circumstance  is,  that  when  Cloyes  heard  the 
pre-emption  law  of  1830  was  about  to  pass,  or  had  passed — it  is 
uncertain  which  from  the  evidence — he  removed  his  wife  and 
children,  with  some  articles  of  necessary  furniture,  to  the  tinner's 
shop  from  his  residence  at  the  Hutt  place,  and  kept  his  family  at 
the  shop  for  a  few  months,  and  then  they  returned  to  their  estab- 
lished home.  This  contrivance  was  probably  resorted  to  at  the 
instance  of  Benjamin  Desha,  who  had  agreed  with  Cloyes  to  pay 
into  the  land  office  the  purchase-money  and  all  incidental  expenses 


Lytle  v.  The  State  of  Arkansas.  117 

to  obtain  a  title  from  the  government  for  an  interest  of  one-iialf 
of  the  land.  These  evasions  were  mere  attempts  to  defrand  the 
law,  and  to  furnish  some  foundation  for  the  necessary  affidavits 
to  support  his  pre-emption  claim  at  the  land  office. 

On  this  aspect  of  the  case  the  question  arises  whether  Cloyes' 
possession  as  lessee  and  tenant  of  Ashley,  occupying  a  shop  as 
a  mechanic,  the  corner  of  which  accidentally  obtruded  over  the 
section  line  upon  the  public  land,  and  who  was  subject  to  removal 
by  his  landlord  each  mouth,  was  "a  settlement"  on  the  public 
lands  within  the  true  intent  and  meaning  of  the  act  of  May,  1830  ? 

That  Cloyes  never  contemplated  seeking  a  home  on  the  public- 
lands  as  a  cultivator  of  the  soil  is  manifest  from  the  proof.  He 
worked  at  his  trade,  when  he  worked  at  all,  say  the  witnesses, 
and  followed  no  other  avocation.  Our  opinion  is,  that  the  affi- 
davits on  which  the  occupant  entry  was  founded  were  untrue  in 
fact,  and  a  fraud  on  the  register  and  receiver,  and  that  Cloyes 
had  no  boiui  fide  possession  as  tenant  of  the  tinner's  shop  within 
the  true  meaning  of  the  act  of  1830. 

We  are  also  of  opinion  that  the  affidavits  are  disproved  as 
respects  the  fact  of  ciiltivation  in  1829.  There  was  no  garden 
cultivated  in  that  year  adjoining  or  near  to  the  shop.  To  say  the 
least,  it  is  quite  doubtful  whether  there  was  such  cultivation  east 
of  the  Quapaw  line  ;  and  the  State  courts,  having  found  that 
there  was  none,  it  is  our  duty  to  abide  by  their  finding,  unless  we 
could  ascertain  from  the  proof  that  they  were  mistaken,  which 
we  cannot  do  ;  our  impressions  being  to  the  contrary. 

The  question  of  cultivation  in  May,  1830,  depended  on  parol 
evidence  of  witnesses.  The  judges  below  knew  them ;  they 
decided  on  the  spot,  with  all  the  localities  before  them ;  and  as 
the  evidence  is  contradictory,  it  would  be  contrary  to  precedent 
for  this  court  to  overrule  the  finding  of  a  mere  fact  by  the  courts 
below. 

Oil  the  seeend  gycnfiid.s  stided  we  order  that  the  decree  of  the 
Si'in'enie  Court  of  Ark((iiS((s  be  <(ffirriied.  iclth  costs. 

Mk.  Ji  stice  McLean  and  Mr.  Justice  Clifford  dissented. 

Mr.  Ji^stice  McLean  :  I  dissent  from  the  opinion  of  the  court 
as  now  expressed,  and  shall  refer  to  the  former  opinion  to  show 
the  nature  of  the  case  : 

"  After  the  refusal  of  the  receiver  to  receive  payment  for  the 


118  Lytle  v.  The  State  of  Arkansas. 

land  claimed  an  act  was  passed,  14tli  July,  1832,  continuing  the 
act  of  29tli  May,  1830.  and  which  specially  provided  that  those 
who  had  not  been  enabled  to  enter  the  land,  the  pre-emption  right 
of  which  they  claimed,  within  the  time  limited,  in  consequence 
of  the  public  survej^s  not  having  been  made  and  returned,  should 
have  the  right  to  enter  such  lands,  on  the  same  conditions  in 
every  respect  as  prescribed  in  said  act.  within  one  year  after  the 
surveys  shall  be  made  and  returned.  And  this  act  was  in  full 
force  before  Governor  Pope  selected  said  lands.  That  the  public 
surveys  of  the  above  fractional  sections  were  made  and  perfected 
on  or  about  the  1st  of  December,  1833,  and  returned  to  the  land 
office  the  beginning  of  the  year  1834.  On  the  5th  of  March,  1834, 
the  complainant  paid  into  the  land  office  the  sum  of  $135.76^  in 
full  for  the  above-named  quarter-section. 

That  a  certificate  was  granted  for  the  same,  'on  which  the 
receiver  endorsed  that  the  northwest  fractional  quarter-section' 
two  was  a  part  of  the  location  made  by  Governor  Pope  in  select- 
ing 1,000  acres  adjoining  the  town  of  Little  Rock,  granted  by 
Congress  to  raise  a  fund  for  building  a  court-house  and  jail  for 
the  territory,  and  that  the  endorsement  was  made  by  direction  of 
the  Commissioner  of  the  General  Land  Office.'  •  That  the  register 
of  the  land  office  would  not  permit  the  said  fractional  quarter- 
sections  to  be  entered.' 

It  appeared  that  '  the  patentees  in  both  of  said  patents,  at  the 
time  of  their  application  to  enter  the  lands,  had  both  constructive 
and  actual  notice  of  the  right  of  Cloyes,  and  that  the  present 
owners  of  any  part  of  these  lands  had  also  notice  of  the  right  of 
the  complainants.' " 

In  his  dissenting  opinion  Judge  Catron  says:  "The  proof  of 
occupancy  and  cultivation  was  made  in  April,  1831.  under  the 
act  of  1830,  pursuant  to  an  instruction  from  tlie  Commissioner 
of  the  General  Land  Office  having  reference  to  that  act.  The  act 
itself,  the  instruction  under  its  authority',  and  the  proofs  taken 
according  to  the  instruction  expired  and  came  to  an  end  on  the 
29th  May,  1831.  After  tliat  time  the  matter  stood  as  if  neither 
had  ever  existed  ;  nor  had  Cloyes  more  claim  to  entry  from  May 
29,  1831,  to  July.  1832.  than  any  other  villager  in  Little  Rock." 

Now,  although  it  may  be  true  that,  until  the  act  of  1832  had 
passed,  the  act  of  1830  having  expired,  the  pre-emptive  right  of 
Cloyes  could  not  be  perfected,  yet  the  policy  of  the  law  was,  where 
vested  rights  had  accrued,  which,   by  reason  of  delays  in  the 


Lytle  (j.  The  State  of  Arkansas.  119 

completion  of  surveys,  could  not  be  carried  out,  the  government 
gave  relief  by  extending  the  law.  And  the  inchoate  right  was 
secured  by  the  policy  of  the  government.  It  is  therefore  not 
strictly  accurate  to  say,  the  party  entering  a  pre-emption  has  no 
right.  He  has  a  right,  recognized  by  the  government,  by  which 
he  is  enabled  to  perfect  his  right ;  and,  under  such  circumstances, 
no  new  entry  could  interfere  with  a  prior  one,  though  imperfect. 

This  court  say,  the  proof  of  the  pre-emption  right  of  Cloyes 
being  entirely  satisfactory  to  the  land  officers,  under  the  act  of 
1830.  there  was  no  necessity  of  opening  and  receiving  additional 
proof  under  any  of  the  subsequent  laws.  The  act  of  1830  having 
expired,  all  rights  under  it  were  saved  by  the  subsequent  acts. 
No  steps  which  had  l^een  taken  were  required  again  to  be  taken. 

Did  the  location  of  Governor  Pope,  under  the  act  of  Congress, 
affect  the  claim  of  Cloyes?  On  the  15th  of  June.  1832,  one  thous- 
and acres  of  land  were  granted,  adjoining  the  town  of  Little  Rock, 
to  the  Territory  of  Arkansas,  to  be  located  by  the  governor. 
This  selection  was  not  made  until  the  30th  of  January.  1833. 
Before  the  grant  was  made  by  Congress  of  this  tract,  the  right  of 
Cloyes  to  a  pre-emption  had  not  only  accrued,  under  the  provisions 
of  the  act  of  1830,  but  he  had  proved  his  right,  under  the  law,  to 
the  satisfaction  of  the  register  and  receiver  of  the  land  office. 
He  had,  in  fact,  done  everything  he  could  do  to  perfect  this  right. 
No  fault  or  negligence  can  be  charged  to  him. 

"By  the  grant  to  Arkansas,  Congress  could  not  have  intended 
to  impair  vested  rights.  The  grants  of  the  thousand  acres  and  of 
the  other  tracts  must  be  so  construed  as  not  to  interfere  with  the 
pre-emption  of  Cloyes." 

From  the  citations  above  made  in  the  original  opinion  in  this 
case,  the  following  facts  and  principles  of  law  are  too  clear  to 
admit  of  doubt  by  any  one  : 

1.  That  Cloyes'  pre-emption  to  fractional  quarter-section  No.  2 
was  clearly  established,  by  the  judgment  of  the  land  officers  and 
of  this  court. 

2.  That  the  location  of  Governor  Pope,  being  subsequent  to  the 
right  of  Cloyes,  could  not  affect,  under  the  circumstances,  that 
right,  and  that  the  conveyance  was  subject  to  it.  This  appears  bj' 
the  certificate  of  the  land  office,  by  the  uniform  action  of  the  gov- 
ernment in  all  such  cases,  and  the  good  faith  which  has  charac- 
terized the  action  of  the  government,  in  protecting  pre-emption 
rights,  by  giving  time  to  perfect  such  rights  ;  where  the  govern- 


120  Lytle  v.  The  State  of  Arkansas. 

meut  officers  had  failed  in  doinu'  their  duty.  And  in  addition  to 
these  considerations,  in  the  solemn  declaration  of  this  court, 
"  that  Congress  could  not  have  intended  to  impair  vested  rights." 
And  the  court  say,  "the  grants  of  the  thousand  acres  and  of 
the  other  tracts  must  be  so  construed  as  not  to  interfere  with  the 
pre-emption  of  Cloves.*' 

This  court  sa3^  "The  Supreme  Court  of  the  State,  in  sustaining 
the  demurrers  and  dismissing  the  bill,  decided  against  the  pre- 
emption right  claimed  by  the  representatives  of  Cloyes  ;  and  as 
we  consider  that  a  valid  right  as  to  the  fractional  quarter  on  which 
his  improvement  was  made,  the  judgment  of  the  State  court  was 
reversed.'" 

"  Now,  the  defendants  demurred  to  the  original  bill,  which  they 
had  a  right  to  do,  and  rest  the  case  on  the  demurrers  appearing 
on  the  face  of  the  bill.  But  this  court  held  Cloyes'  right  valid, 
and  consequently  reversed,  on  this  head,  the  judgment  of  the 
State  court.  And  the  cause  is  transmitted  to  the  State  court  for 
further  proceeding  before  it.  or  as  it  shall  direct  on  the  defense 
set  up  in  the  answers  of  the  defendants,  that  they  are  bona  fide 
purchasers  of  the  whole  or  parts  of  the  fractional  section  in  con- 
troversy, without  notice,  and  that  tliat  court  give  leave  to  amend 
the  pleadings  on  both  sides,  if  requested,  that  the  merits  may  be 
fully  presented  and  proved,  as  equity  shall  require." 

Now.  it  is  perfectly  clear  that  nothing  was  transmitted  under 
the  direction  of  this  court  to  the  State  court,  except  the  latter  part 
of  the  sentence  beginning.  "  and  the  cause  is  transmitted  to  that 
court,"  &c.  And  that  part  relates  wholly  to  the  inquiry  whether 
the  defendats  were  bona  fide  purchasers  of  the  whole  or  parts  of 
the  fractional  section  in  controversy.  And  for  this  purpose,  leave 
was  given  to  amend  the  pleadings. 

If  there  is  anything  in  this  bill  which  afforded  any  pretence  to 
the  State  court  to  open  the  pleadings,  and  examine  any  matters 
in  the  bill,  except  those  specified  in  its  close,  it  has  escaped  my 
notice. 

It  is  said  in  the  bill,  •■  the  register  and  receiver  were  consti- 
tuted, by  the  act.  a  tribunal  to  determine  the  right  of  those  who 
claimed  pre-emptions  under  it.  From  their  decision  no  appeal 
was  given.  If,  therefore,  they  acted  within  their  powers,  as  sanc- 
tioned by  the  commissioner,  and  within  the  law,  the  decision 
cannot  be  impeached  on  the  ground  of  fraud  oi-  unfairness  :  it 
must  be  considered  final."" 


Lytle  ?;.  The  State  of  Arkansas.  121 

The  court  here  was  speakin«;  of  its  own  powers  oi"  jurisdiction 
and  investigation,  and  not  the  powers  of  any  other  tribunal.  It 
was  supposed  that  no  superior  court  would  willingly  permit  its 
judicial  powers  to  be  subverted,  new  parties  made,  new  subjects 
introduced,  and  the  whole  proceedings  reversed,  at  the  will  of  an 
inferior  jurisdiction,  without  the  exercise  of  a  controlling  power. 

This  State  record  of  Arkansas  seems  to  have  been  a  prolific 
source  of  controversy,  as  its  proportions  have  grown  to  about  a 
thousand  pages,  not  including  briefs  and  statements  of  facts.  It 
certainly  must  require  some  skill  in  legislation,  to  draw  into  the 
State  court  so  large  an  amount  of  business  under  the  laws  of 
Congress.  And  it  may  become  a  matter  of  public  concern,  when 
such  a  mass  of  judicial  action  is  not  only  thrown  into  the  State 
court,  but  new  rules  and  principles  of  action  are  liable  to  be 
sanctioned  in  disregard  of  the  laws  of  the  United  States. 

Witliout  any  authority,  it  does  appear  that  the  judgment  of 
the  Supreme  Court  has  been  reversed  by  the  Arkansas  court, 
its  proceedings  modified  in  disregard  of  its  own  judgments  and 
opinions  clearly  expressed,  and  new  rules  of  proceedings  insti- 
tuted and  carried  out ;  and  this  under  an  authority  given  to  the 
Arkansas  court  to  ascertain  whether  certain  purchases  had  been 
made  bona  fide. 

Cloyes,  in  his  lifetime,  by  his  own  affidavit,  and  the  affidavits 
of  others,  made  proof  of  his  settlement  on.  and  improvement  of, 
the  above  fractional  (piarter.  according  to  the  provisions  of  the 
act,  to  the  satisfaction  of  the  register  and  receiver  of  said  land 
district,  agreeably  to  the  rules  prescribed  by  the  Commissioner 
of  the  General  Land  Office  ;  on  the  20th  May.  1831.  Hartwell 
Boswell.  the  register,  and  John  Redman,  the  receiver,  decided 
that  the  said  Cloyes  was  entitled  to  the  pre-emption  right  claimed^ 
"  On  the  same  day  he  applied  to  the  register  to  enter  the  north- 
west fractional  quarter  of  section  two.  containing  thirty  acres  and 
eighty-eight  hundredths  of  an  acre."'  But  the  register  very  pro- 
perly decided  that  Cloyes  could  only  be  permitted  to  enter  the 
fraction  on  which  his  improvement  was  made. 

The  Commissioner  of  the  General  Land  Office,  and  the  register 
and  receiver,  declare  they  were  satisfied  with  the  proof  made  in 
the  case  ;  but  the  Supreme  Court  of  Arkansas  decided  against 
the  pre-emption  right  claimed  by  the  representatives  of  Cloves  : 
and  the  Supreme  Court  of  the  United  States  say.  "  as  we  consider 
that   a  valid   riglit   as   to   the    fractional    (piarter    on  which   the 


122  Lytle  v.  The  State  of  Arkansas. 

improvement   was   made,    the   judgment    of  the    State    court  is 
reversed." 

How  docs  this  case  now  stand  ?  It  stands  reversed  upon  our 
own  records  by  the  Supreme  Court  of  Arkansas,  and  by  no  other 
power.  A  majority  of  this  bench  entered  the  judgment,  as  it  now 
stands,  in  1849.  But  through  the  reforming  process  of  a  record 
of  a  thousand  pages,  not  including  notes  and  statements  of  facts, 
it  has  become  a  formidable  pile,  enough  to  fill  with  dispair  the 
first  claimant  of  the  pre-emption  right. 

It  is  true,  the  cause  was  sent  down  for  a  special  purpose,  every 
word  of  which  I  now  copy  : 

^' And  the  cause  is  transmitted  to  that  court  (the  Supreme  Court 
of  Arkansas)  for  further  proceedings  before  it,  or  as  it  shall  direct, 
on  the  defense  set  up  in  the  answers  of  the  defendants,  that  they 
are  bona  fide  purchasers  of  the  whole  or  parts  of  the  fractional 
sections  in  controversy,  without  notice,  and  that  that  court  give 
leave  to  amend  the  pleadings  on  both  sides,  if  requested,  that  the 
merits  of  the  case  may  be  fully  presented  and  proved,  as  equity 
shall  require." 

Several  of  the  defendants  alleged  that  they  were  bona  fide  pur- 
chasers of  a  part  or  the  whole  of  the  fraction,  without  notice  ;  and 
the  object  in  sending  the  case  down  was  to  enable  persons 
to  show  they  were  purchasers  of  this  character.  This  did  not 
necessarily  involve  fraud.  And  this  embraces  the  whole  subject 
of  inquiry. 

It  would  have  been  inconsistent  for  this  court  to  say  we  consider 
the  pre-emption  claim  by  the  representatives  of  Cloyes  as  a  valid 
right,  as  to  the  fractional  quarter  oil  which  his  improvement  was 
made,  and  on  that  ground  to  reverse  the  judgment  of  the  State 
court,  and  at  the  same  time  send  the  case  down,  open  to  the  charge 
of  fraud  and  every  conceivable  enormity.  The  object  was  to 
know  who  were  purchasers  without  notice.  That  this  was  the 
intention  of  the  Supreme  Court  is  palpable  from  the  language  of 
the  entry. 

The  majority  of  the  Supreme  Court  had  full  confidence  in  the 
validity  of  Cloyes'  claim,  and  consequently  they  reversed  the 
judgment  of  the  State  court,  leaving  the  question  open,  whether 
the  defendants  were  purchasers  without  notice.  It  may  be  that 
this  entry  would  have  protected  all  the  purchasers. 

From  the  nature  of  pre-emption  rights,  it  is  presumed,  a  person 
desirous  of  such  a  right  is  the  first  applicant.     And  the  proof  of 


Lytle  v.  The  State  of  Arkansas.  123 

such  a  right,  if  sustained  by  the  register  and  receiver  and  the 
Commissioner  of  the  Land  Office,  the  proof  required   is  deemed 
satisfactory.     It  is  only  where  a  fortunate  selection  appears  to  be  / 
made,  by  the  prospect  of  a  city,  or  some  great  local  advantage  is 
anticipated,  that  a  contest  arises  as  to  such  a  claim. 

The  officers  of  the  land  department,  whose  peculiar  duty  it  was 
to  protect  the  public  rights,  seemed  to  liave  discharged  their  duty 
to  the  satisfaction  of  the  government.  This  was  also  entirely 
satisfactory  to  a  majority  of  tlie  judges  of  this  court,  with  the  single 
exception,  that,  from  the  answers,  it  was  probable  that  there  may 
have  been  purchasers  of  this  right  without  notice.  And  from  the 
evidence  introduced,  it  would  seem  to  have  been  considered  that 
any  one  who  at  any  time  desired  to  purchase,  considered  himself 
as  having  a  right  to  complain,  although  he  had  no  means  to  make 
the  purchase,  or  had  no  desire* to  make  it. 

If  I  mistake  not.  evidence  was  heard  from  witnesses  from  twenty 
to  twenty -five  years  after  the  pre-emption  right  was  sanctioned  by 
the  government.  Such  a  course  tends  greatly  to  embarrass  land 
titles  under  the  general  land  law.  Every  one  knows  that  a  man 
who  endeavors  to  obtain  a  pre-emption,  must,  in  tlie  nature  of 
things,  be  a  man  of  limited  means,  and  incapable  of  maintaining 
an  expensive  suit  at  law ;  and  it  has  always  appeared  to  me  the 
true  policy  to  limit  those  questions  to  the  land  department  of  the 
government.  At  all  events  that  they  should  be  limited  to  the 
federal  tribunals,  where,  it  may  be  presumed,  the  land  department 
will  have  an  uniform  administration. 

As  this  case  now  stands.  I  think  the  judgment  of  the  Arkansas 
Supreme  Court  must  be  reversed  on  two  grounds  : 

1.  Because  it  has  reversed  the  judgment  of  this  court,  entered 
by  a  majority  of  the  members  at  December  term.  1849.  in  these 
words :  "  The  Supreme  Court  of  the  State  in  sustaining  the 
demurrers  and  dismissing  the  bill,  decided  against  the  pre-emption 
claimed  by  the  representatives  of  Cloyes  ;  and  as  we  consider  that 
a  valid  right,  as  to  the  fractional  quarter  on  which  his  improve- 
ment was  made,  the  judgment  of  the  State  court  is  reversed." 

This  is  the  judgment  of  this  court  as  it  now  stands  upon  our 
docket.     And — 

2.  The  judgment  of  the  State  court  must  be  reversed,  because 
it  wholly  disregarded  the  directions  of  this  court  in  trying  the 
issues  transmitted  to  it. 


124 


Myers  v.  Croft. 


]\Iyeks  v.  Ckoft. 


Dccembov  Term,  T871,— 1;{  Wallace,  291. 


1.  When  the  grantee  in  a  deed  is  described  in  a  way  which  is  a  proper 

enough  description  of  an  incorporated  company,  capable  of  liolding 
land,  as  ex.  rjr.,  "  The  Sulphur  Springs  TmucI  Company,"  the  court, 
in  the  absence  of  any  proof  whatever  to  the  contrary,  will  presume 
that  the  company  was  capable  in  law  to  take  a  conveyance  of  real 
estate. 

2.  A  grantor  not  having  perfect  title,   who  conveys   for   full  value,  is 

estopped,  both  himself  and  others  claiming  by  subsefiuent  grant 
from  him,  against  denying  title ;  a  perfect  title  afterwards  coming 
to  him. 

3.  Under  the  12th  section  of  the  act  of  September.  1841,  "  to  appi'opriate 

the  proceeds  of  the  sales  of  public  lands  and  to  grant  pre-emption 
rights"  which  section,  after  prescribing  the  manner  in  which  the 
proof  of  settlement  and  improvements  shall  be  made  before  the  land 
is  entered,  has  a  provision  that  "all  assignments  and  transfers  of 
the  rights  hereby  secured,  prior  to  the  issuing  of  the  patent,  shall 
be  null  and  void  "—a  pre-emptor  who  has  entered  the  land,  and 
who,  at  the  time,  is  the  owner  in  good  faith,  and  ha«  done  notliing 
inconsistent  with  the  provisions  of  the  law  on  the  subject,  may  sell, 
even  though  he  has  not  yet  obtained  a  patent.  'Ihe  disability  extends 
only  to  the  assignment  of  the  pre-emption  right. 

Error  to  the  Circuit  Court  for  the  District  of  Nebraska,  the 
case  being  thus  : 

An  act  of  Congress,  entitled  "An  act  to  appropriate  the  pro- 
ceeds of  the  sales  of  the  public  lands,  and  to  grant  pre-emption 
rights."  approved  September  4th,  1841,  after  prescribing  tlie 
manner  in  which  the  proof  of  settlement  and  improvement  shall 
be  made  before  the  land  is  entered,  has  this  proviso  :  '"  And  all 
assignments  and  transfers  of  the  right  hereby  secured  prior  to  the 
issuing  of  the  patent,  shall  be  null  and  void.'' 

Under  and  by  virtue  of  this  act.  one  Fraily.  on  the  3d  of  Sep- 
tember, 1857,  entered  a  quarter-section  of  land  in  Nebraska,  at 
the  land  office  for  the  Omaha  land  district,  with  tlie  register 
thereof. 

On  the  same  3d  of  September,  1857 — no  letters-patent  having  as 
yet  issued  to  him — in  consideration  of  f36.000,  as  appeared  on 
the  face  of  deed,  he  conveyed,  by  a  warranty  deed,  the  premises 
to  "  The  Sulphur  Springs  Land  Company  ;"  the  company  being 
not  otherwise  described  in  the  instrument,  and  there  being  noth- 
ing in  the  instrument  or  in  other  proof  to  show  whether  the  said 


Myers  v.  Croft.  125 

grantee  was  a  corporation  and  capable  of  taking  land,  or  an  unin- 
corporated company- 

On  the  1st  of  May,  I860 — more  than  two  years  after  the  date 
of  the  deed  above  mentioned — Fraily  niade  another  deed,  for  the 
sura,  as  appeared  by  the  instrument,  of  $6,000,  to  a  certain  INIyers  . 

In  this  state  of  things.  Myers  sued  Croft,  who  was  in  under 
the  comi)any.  in  ejectment,  to  try  the  title  to  the  land.  And  the 
deed  to  "The  Sulphur  Springs  Land  Company"  being  in  evi- 
dence on  the  part  of  the  defendant,  the  plaintiff  moved  tlie  court 
to  rule  it  from  the  jury,  for  the  reasons  : 

1st.  That  he  had  not  shown  that  the  Sulphur  Springs  Land 
Company  was  an  organization  capable  of  receiving  the  convey- 
ance of  land  ;   and. 

2d.  That  under  the  i)rovisions  of  the  act  of  Congress,  already 
quoted,  the  deed  was  void. 

The  court  overruled  the  motion,  charging  contrariwise,  that  the 
deed  was  valid  and  passed  the  title  to  the  premises.  To  this 
ruling  and  charge  the  plaintitf  excepted,  and  judgment  having 
been  given  for  the  defendant  the  case  was  now  here. 

Messrs.  N.  Cobb  and  L.  Douglass,  for  the  plaintiff  in  error. 
1st.  Although  the  Sulphur  Springs  Land  Company,  as  we  may 
here  admit,  was  in  fact  incorporated,  the  fact  nowhere  appears  in 
proof.  Being  a  chartered  company  it  was  incuralient  on  the  defen- 
dant to  show  the  terms  of  the  charter,  and  that  by  them  the  company 
could  take  the  lands. 

If  not  a  corporation,  the  deed  was  void  for  want  of  certainty  in 
the  name  of  the  grantee. 

2d.  Does  the  r2th  section  of  the  act  of  Congress  of  September 
4th.  184 L  intend  to  i)rohil)it  the  pre-emption  from  all  alienation 
of  the  property  which  he  has  acquired  under  the  pre-emption 
act  prior  to  the  issuing  of  the  patent,  or  does  it  intend  simply  to 
prevent  the  transfer  of  the  right  to  pre-empt? 

The  former  view  is  the  one  best  sustained  b}'  the  statute.  That 
is  the  way  it  reads  ;  and  when  a  statute  is  plain,  it  should  not  be 
frittered  away  by  refinements.  Until  payment  made  for  the  land 
and  certificate  of  purchase  procured  the  pre-emptor  has  nothing 
which  he  can  assign.  If  after  certificate  of  purchase  was 
obtained,  there  was  intended  to  be  no  restriction  on  the  sale  of  the 
land  by  the  pre-emptor,  why  did  the  act  use  the  words  "  prior  to 
the  issuing  of  the  patent?"' 


126  Myers  v.  Croft. 

The  other  view  is.  that  the  right  secured  is  the  riijht  to  pre-empt ; 
and  that  tliis  rio;lit  is  fully  secured  when  the  purchase  is  made  of 
the  United  States.  The  ri^^ht  thus  preferably  to  purchase  cannot 
be  transferred,  and  it  is  tliis  alone  (it  may  be  argued)  which  is 
prohibited.  If  so.  why  did  the  statute  use  the  words  "  prior  to 
the  issuing  of  the  patent,"  instead  of  prior  to  the  issuing  of  the 
certificate?  Congress  knew  the  difference  between  a  certificate  of 
purcliase  and  a  patent.  They  are  different  instruments  and  sub- 
serve a  different  purpose.  The  certificate  shows  that  the  party 
has  entered  the  land  and  is  entitled  to  a  patent  at  some  future 
time  ;  the  patent  transfers  the  title. 

According  to  the  course  of  business  ordinarily,  patents  do  not 
issue  for  years  after  the  entry  is  made.  This  case  proves  that 
fact,  and  it  is  not  unreasonable  to  suppose  Congress  was  apprised 
of  that  fact. 

The  view  we  take  of  this  law  best  accords  with  the  policy-  of 
the  pre-emption  privilege.  The  object  of  the  government  was, 
in  fact,  to  induce  settlements  upon  the  public  lands,  but  chiefly  to 
confer  the  preferable  right  to  purchase  on  those  persons,  usually 
in  indigent  circumstances,  who  actually  settled  or  improved  them. 
It  was  not  to  aid  the  speculator  in  lands.  {Marks  v.  Dickson,  20 
Howard.  .')01.  505.) 

Pre-emptions  for  purposes  of  speculations  will  be  less  likeh'' 
to  be  made  if  the  pre-emptor  is  obliged  to  wait  until  the  patent 
issues  before  he  can  alienate. 

There  was  a  similar  provision  in  the  act  of  29th  May,  1830  (4 
Stat,  at  Large.  420.  §  3.)  The  language  of  the  two  acts  is  almost 
literally  the  same.  By  the  act  of  January  23,  1832  {lb.,  496).  the 
prohibition  as  to  assignment  and  transfers  of  the  right  of  pre-emp- 
tion contained  in  the  act  of  1830  is  removed,  and  it  is  provided 
that  "  all  persons  who  have  purchased  lands  under  the  act  of  May 
29, 1830.  may  assign  and  transfer  their  certificates  of  purchase  or 
final  receipts,  and  patents  may  issue  in  the  name  of  such  assignee, 
anything  in  the  act  aforesaid  to  the  contrary  notwithstanding." 
This  shows  that  it  was  understood  by  Congress  as  restricting 
alienations  by  the  pre-emptor  after  payment  and  before  patent 
issued.  The  eflTect  of  allowing  such  transfers  was  such  that  Con- 
gress in  passing  the  carefully-framed  act  of  September  4,  1841, 
renewed  tlie  prohibition  against  transfers  which  was  contained  in 
the  act  of  1830.  The  government  had  witnessed  the  practical 
effect  of  both  policies,  and  the  judgment  of  Congress  as  embodied 


Myers  v.  Croft.  127 

in  the  latter  act  as  to  which  is  the  better  policy  should  be  resjjected 
b}'^  the  courts,  and  the  language  of  the  statute  should  be  allowed 
its  fair  and  natural  meaning. 

Though  the  point  has  never  been  before  this  court,  it  has  fre- 
quentl}'  been  before  the  State  courts,  and  the}'  have  with  great 
uniformity  held  that  the  pre-emptor  liad  no  transferable  interest 
prior  to  the  issuing  of  the  patent.  Arhonr  v.  Nettles,  12  Louis- 
iana An.,  217  ;  Poirvier  v.  White,  2  Id..  934  ;  Penn  v.  Ott,  12  Id., 
233  ;  Stanbrougli  v.  Wilson,  13  Id.,  494 ;  Stevens  v.  Hays,  1  Indi- 
ana, 247  ;  McElyea  v.  Hayter,  2  Porter  (Ala.),  148  ;  Cvndiff  v. 
Onns.  7  Id..  58  :  Glenn  v.  Thistle,  23  :Mississippi,  42-49  ;  Wilker- 
son  v.  Mayfield,  27  Id.,  542;  McTyer  v.  McDowell.  36  Alabama. 
39;  Paulding  v.  Grimsley,  10  Missouri,  210. 

Mr.  JrsTiCE  DA^^s  delivered  the  opinion  of  the  court. 

In  relation  to  the  first  objection — that  the  Sulphur  Springs 
Land  Company  was  not  a  competent  grantee  to  receive  the  title — 
it  is  sufficient  to  say,  in  the  absence  of  any  proof  whatever  on 
the  su])ject,  that  it  will  be  presumed  the  land  company  was  capa- 
ble, in  law,  to  take  a  conveyance  of  real  estate.  Besides,  neither 
Fraily,  who  made  the  deed,  nor  Myers,  who  claims  under  him,  is 
in  a  position  to  question  the  capacity  of  the  company  to  take  the 
title  after  it  has  paid  to  Fraily  full  value  for  the  property.  Smith 
v.  Sheeley,  12  AYallace,  358. 

The  other  objection  is  of  a  more  serious  character,  and  depends 
for  its  solution  upon  the  construction  to  be  given  the  last  clause 
of  the  12th  section  of  the  act  of  Congress  of  September  4th,  1841. 
The  act  itself  is  one  of  a  series  of  pre-emption  laws  conferring 
upon  the  actual  settler  upon  a  qi;arter-section  of  public  land 
the  privilege  (enjoyed  by  no  one  else)  of  purchasing  it,  on  com- 
plying with  certain  prescribed  conditions.  It  had  been  the  well- 
defined  policy  of  Congress,  in  passing  these  laws,  not  to  allow 
their  benefit  to  enure  to  the  profit  of  land  speculators,  but  this 
wise  policy  was  often  defeated.  Experience  had  proved  that 
designing  persons,  being  unal)le  to  purchase  valuable  lands,  on 
account  of  their  withdrawal  from  sale,  would  procure  middle  men 
to  occupy  them  temporarily,  with  indifferent  impi-ovements,  under 
an  agreement  to  convey  them  so  soon  as  they  were  entered  by 
virtue  of  their  pre-emption  rights.  When  this  was  done,  and  the 
speculation  accomplished,  tlie  lands  were  ay)andoned. 

This  was  felt  to  be  a  serious  evil,  and  Congress,  in  the  law 


128  Myers  v.  Croft. 

under  consideration,  undertook  to  remedy  it  by  requirins:  of  the 
applicant  for  a  pre-emption,  before  he  was  allowed  to  enter  the 
land  on  which  he  had  settled/to  swear  that  he  had  not  contracted 
it  away,  nor  settled  ui)on  it  to  sell  it  on  speculation,  but,  in  good 
faith,  to  appropriate  it  to  his  own  use.  In  case  of  false  swearing 
the  pre-emptor  was  subject  to  a  prosecution  for  perjury,  and  for- 
feited the  money  he  had  paid  for  the  land  ;  and  any  grant  or 
conveyance  made  by  him  befo7-e  the  entry  was  declared  null  and 
void,  with  an  exception  in  favor  of  bona  fide  purchasers  for  a 
valuable  consideration.  It  is  contended  by  the  plaintiff  in  error 
that  Congress  went  further  in  this  direction,  and  imposed  also  a 
restriction  upon  the  power  of  alienation  after  the  entry,  and  the 
last  clause  in  the  12th  section  of  the  act  is  cited  to  support  the 
position. 

This  section,  after  prescribing  the  manner  in  which  the  proof 
of  settlement  and  improvement  shall  be  made  before  the  land  is 
entered,  has  this  proviso  :  "  and  all  assignments  and  transfers  of 
the  right  hereby  secured  prior  to  the  issuing  of  the  patent  shall 
be  null  and  void." 

The  inquiry  is,  what  did  the  legislature  intend  by  this  prohibi- 
tion ?     Did  it  mean  to  disqualify  the  pre-emptor  who  had  entered 
the  land  from  selling  it  at  all  until  he  had  obtained  his  patent,  or 
did  the  disability  extend  only  to  the  assignment  of  the  pre-emp- 
tion right  ?     Looking  at  the  language  employed,  as  well  as  the 
policy  of  Congress  on  the  subject,  it  would  seem  that  the  interdic- 
tion was  intended  to  apply  to  the  right  secured  by  the  act,  and 
did  not  go  further.     This  was  the  right  to  pre-empt  a  quarter- 
section  of  land  by  settling  upon  and  improving  it,  at  the  minimum 
price,  no  matter  what  its  value  might  be  when  the  time  limited 
for  perfecting  the  pre-emption  expired.     This  right  was  valuable, 
and,  independently  of  the  legislation  of  Congress,  assignable. 
{Threadgill  v.  Pinturd,  12  Howard.  24.)     The  object  of  Congress 
was  attained  when  the  pre-emptor  went,  with  clean  hands,  to  the 
land  office  and  proved  up  his  right,  and  paid  the  government  for 
his  land.     Restriction  upon  the  power  of  alienation  after  this 
would  injure  the  pre-emptor,  and   could  serve  no  important  pur- 
pose of  public  policy.     It  is  well  known  tliat  patents  do  not  issue 
in  the  usual  course  of  business  in  the  General  Land  Office  until 
several  years  after  the  certificate  of  entry  is  given,  and  equally 
well  known  that  nearly  ail  the  valuable  lauds  in  the  new  States, 
admitted  since  1841,  have  been  taken  up  under  the  pre-emption 


Myers  v.  Croft.  129 

laws,  and  the  riirlit  to  sell  them  freely  exercised  after  the  claim 
was  proved  up.  the  laud  paid  for,  and  the  certificate  of  entry- 
received.  In  view  of  these  facts  we  cannot  suppose,  in  the  absence 
of  an  express  declaration  to  that  effect,  that  Conoress  intended  to 
.  tie  up  these  lands  in  tlie  hands  of  the  original  owners  until  the 
government  should  choose  to  issue  the  patent. 

If  it  had  been  the  purpose  of  Congress  to  attain  the  object 
contended  for,  it  would  have  declared  the  lands  themselves 
unalienable  until  the  patent  was  granted.  Instead  of  this,  the 
legislation  was  directed  against  the  assignment  or  transfer  of  the 
right  secured  by  the  act.  which  was  the  right  of  pre-emption, 
leaving  the  pre-emptor  free  to  sell  his  land  after  the  entry,  if  at 
that  time  he  was.  in  good  faith,  the  owner  of  the  land,  and  had 
done  nothing  inconsistent  with  the  provisions  of  the  law  on  the 
subject.  Judgment  affirmed. 


Note.— A  pre-emptor  cannot  sell  his  right  to  the  land  so  as  to  give 
any  rights  to  the  purchaser,  and  such  sale  will  extinguish  his  own  riglit 
to  enter  the  land. .  Quinn  v.  Kemjon,  38  Cal.,  499  ;  Moore  v.  Besae,  43 
Cal.,  511. 

A  conveyance  of  the  land  before  proof  and  payment  have  been  made, 
is  void.  Morgan  v.  Curtenins,  4  McLean,  oGfJ  ;  Moore  v.  Jordan.,  14  I.a. 
Ann.,  414.  And  if  possession  is  given  under  sucli  couA-eyance,  it  can  be 
recovered  back  by  the  pre-emptor.     Seatoa  v.  Sharkey,  3  La.  Ann.,  332. 

A  mortgage  given  on  the  land  before  proof  and  payment  have  been 
made,  is  void.  Strong  v.  Roclid,  IG  La.,  232  ;  Breicster  v.  Madden,  15 
Kans.,  249.  A  levy  and  sale  under  a  mortgage  executed  before  proof 
and  payment  have  been  made,  is  a  nullity.  Penn  v.  Oif,  12  La.  Ann., 
233.  But  a  mortgage  given  on  the  day  of  entry,  to  secure  tlie  payment 
of  a  land  warrant,  with  which  the  land  was  entered,  is  valid.  Watterson 
V.  Kirkwood,  S  Kan.,  403  ;  Jones  v.  Tainter,  15  Minn.,  512. 

In  California  it  has  been  held  that  a  mortgage  given  by  the  pre- 
emptor.  either  before  or  after  he  filed  his  pre-emption  claim,  is  valid, 
and  may  be  enforced  after  proof  and  payment  have  been  made.  Clark 
V.  Baker,  14  Cal.,  rU2  ;  C/irisfi/  v.  Dana,  34  Cal..  548,  and  42  Cab,  174. 
But  if  the  levy  is  made  before  such  proof  and  payment,  tlie  purchaser 
at  such  sale  acquu-es  no  title,  as  prior  to  proof  and  payment,  the  pre- 
emptor  had  no  title  to  be  levied  upon.  Kenyan  v.  Quinn,  41  Cal.,  325 ; 
Harrington  v.  Sharp,  1  Green  (Iowa),  131. 

If  a  person  entitled  to  pre-empt,  sells  the  land  to  another,  and  takes 
a  mortgage,  payable  when  the  grantor  obtains  title  from  the  United 
States,  but,  by  reason  of  such  sale,  be  could  not  perfect  his  title,  and 
bis  grantee  goes  on  and  obtains  a  title  in  his  own  name,  lie  will  not  be 

9 


130  Harkness  (\  Underiiill. 

released  from  paying  the  luortocagv,  hut  he  may  deduct  from  it  the- 
amount  it  cost  him  to  enter  the  land.     Snow  v.  Fen-ea,  -i')  Cal.,  195. 

In  Iowa  it  lias  been  held  that  a  pre-emption  claim  maj^  be  sold  the 
same  as  other  claims  on  the  public  lands  ;  Bowers  v.  Keescher,  14  Iowa, 
301  ;  and  the  seller  has  an  efiuitaldo  vendor's  lien  on  the  land  for  the 
purciiase  money,  which  can  be  enforced  after  the  grantee  has  entered 
tiie  land  under  the  pre-emption  law.     Fierson  v.  David,  1  Iowa,  "23. 

In  Illinois  it  has  been  held  that  the  pre-emption  law  did  not  prohibit 
the  pre-emptor  from  selling  the  land  before  entry ;  that  it  was  the 
right  to  pre-empt  that  could  not  be  sold  :  that,  should  the  pre-emptor 
sell  tiie  land  with  covenants  of  warranty,  and  afterwards  make  proof 
and  payment  for  the  land,  tlie  title  acquired  wUl  inure  to  the  benefit 
of  his  grantee,  discharged  of  the  widow's  right  of  dower.  Wooley  v. 
Magie,  2f5  111.,  .52.').  But  a  release  of  title  without  warranty,  previous  to 
entrj%  ceases  as  against  the  pre-emptor  so  soon  as  the  entry  is  made- 
Phelps  y.  Kdlo;/g,  15  111.,  131. 

A  contract  by  Avhich  it  was  agreed  that  one  of  the  parties  should  enter 
a  tract  of  land  under  the  graduation  act  of  August  4,  1854,  in  his  own 
name,  but  for  the  joint  use  and  benefit  of  both  parties,  is  invalid,  as 
against  the  policy  of  the  law,  which  is  shown  by  the  afiida\it  required 
when  the  entry  is  made.     Smith  v-  Johnson,  37  .^la.,  633. 

'I'he  act  of  July  15,  1870.  allowing  pre-emptions  on  the  "'Osage  Dimin- 
ished Reserved  Land^,"  does  not  prohibit  a  sale  of  the  land  previous  to 
proof  and  payment.     Foster  v   Bro.^t,  11  Kan.,  350. 

The  act  of  March  3,  1851,  authorizing  pre-emptions  on  the  land 
embraced  within  the  "  Bastrop  Grant,"  does  not  prohibit  the  sale  of  the 
land  bj'  the  pre-emptor  previous  to  entry.  Richards  v.  Emswiler,  14  La. 
Ann.,  G58. 


John  P.  Harkness   and  Maria,  Ms  wife,  Appellants,  v.  Isaac 

Underhill. 

December  Term,  1861.— 1  Black,  316  ;  4  Miller,  479. 

Fraud  in  obtaininrj  pre-emption  certificates.— Lapse  of  time, 

1.  An  agn;ement   between  two  to  obtain  a  pre-emption  entry  of  the 

public  lands  by  a  simulated  settlement  which  was  a  fraud  on  the 
land  office,  cannot  be  the  foundation  of  a  suit  in  equity  by  a  party 
claiming  under  this  contract  to  get  a  decree  for  the  legal  title. 

2.  Where  one  of  the  parties  to  the  fraudulent  agreement  does  afterwards 

make  an  actual  and  bona  fide  settlement,  and  claims  a  pre-emption 
right  inider  it.  the  land  oflice  was  right  in  setting  aside  the  first  and 
.    fraudulent  entry  in  favor  of  his  claim. 

3.  A  bUl  in  equity  brought  by  a  purchaser  of  the  fii'-st  claim,    sixteen 

years  after  the  patent  was  issued  under  the  second,  and  accompanied 
with  po.ssession  in  the  hands  of  a  subsequent  purchaser,  comes  too 
late. 


Harkness  v.  Underbill.  131 

Appeal  from  the  circuit  court  for  the  northern  district  of  Illinois. 
The  case  is  stated  in  tlie  opinion. 
Mr.  Williams  for  appellants. 
Mr.  Carlisle  and  Mr.  Webb  for  defendants. 

Mr.  Justice  Catron  delivered  the  opinion  of  the  court. 

In  the  winter  or  spring  of  1832,  Isaac  Waters  and  Stephen 
Stillman  agreed  to  cultivate  and  improve  the  east  half  of  the 
southeast  quarter  of  section  four,  a  portion  of  which  is  in  contro- 
versy in  this  suit.  This  arrangement  was  made  in  view  of  the 
probabilit}-  that  Congress  would,  at  its  then  session,  pass  a  pre- 
emption law.  It  was  further  stipulated  that  Waters  should  make 
the  necessary  proof  to  obtain  the  pre-emption.  As  was  anticipated 
the  act  of  April  5,  1832,  was  passed,  allowing  "  to  actual  settlers, 
being  housekeepers."  a  pre-emption  to  enter  a  half-quarter-section 
to  include  his  improvement.  Waters  went  on  the  land,  made  a 
slight  improvement  for  the  purpose  of  cultivation,  erected  a  tem- 
porary hut,  or  rather  a  pen.  put  some  furniture  in  it,  and  he,  with 
a  part  of  his  family,  went  into  the  hut.  staid  there  a  couple  of 
days,  and  then  returned  to  his  residence  in  the  village  of  Peoria, 
where  he  resided,  and  continued  to  reside.  He  was  a  substantial 
resident  of  the  village,  having  a  house,  home,  and  family  there. 

The  half-quarter-section  adjoined  the  village  property.  Waters 
made  an  affidavit  in  September,  1832,  that  he  was  an  actual 
settler  and  housekeeper  on  the  land.  He  does  not  say  at  what 
time,  but  he  applied  to  enter  under  the  provisions  of  the  act  of 
April  0,  1832.  He  also  procured  the  affidavit  of  one  Trail,  who 
swore  that  Waters  was  an  actual  settler  and  housekeeper  on  the 
half-quarter-section. 

In  July,  1833,  Waters,  in  a  written  agreement  with  Stillman 
and  Wm.  A.  Stewart,  recited  the  terms  on  which  he  and  Stillman 
agreed  to  improve  the  land,  to  wit :  That  the  entry  was  to  be 
made  for  their  joint  benefit  on  the  proof  furnished  by  Waters. 
Stewart,  at  the  date  of  the  agreement,  stipulated  to  pay  Stillman's 
moiety  of  the  purcliase-money,  and  Waters  was  bound  to  convey 
to  Stewart  and  Stillman  one-half  of  the  eighty  acres  :  and  it 
appears  by  a  covenant,  dated  July  2,  1835,  executed  by  Waters 
to  Pettingal  and  Walcott.  that  Waters'  portion  was  the  western 
forty  acres,  which  he  bound  himself  to  convey  to  Pettingal  and 
Walcott,  they  being  purchasers  from  Waters.  AVaters  soon  there- 
after died,  leaving  a  widow  and  children,  and  they  entered  the 


182  Harkness  v.  Underhill. 

h:ilf-(iuarter-se('ti()n.  in  the  name  of  Waters,  at  the  land  office  at 
(^uiney.  Aiii^nist  7.  183').  The  entry  stood  in  this  condition  till 
:May.  1H88.  when  the  Commissioner  of  the  General  Land  Office 
informed  the  reuister  and  re(!eiver  at  Quincy  that.  Stephen 
vStillman's  heirs  havino;  applied  to  them  to  enter  the  half-qnarter- 
section.  containing  eighty  acres,  and  having  adduced  evidence  to 
the  commissioner  tending  to  prove  that  Waters  went  on  the  land 
into  a  log-pen.  without  a  roof,  and  staid  there  only  one  night : 
furthermore,  that  the  affidavits  of  Waters  and  Trail  being  evasive, 
and  not  stating  that  Waters  was  an  actual  settler  on  the  5th  of 
April,  1832,  the  register  and  receiver  were,  therefore,  instructed, 
that  if  they  believed  the  facts,  as  respects  the  frauds  practised 
to  obtain  the  entry  in  Waters"  name,  to  treat  it  as  volcl.  for 
fraud,  and  allow  Stillman's  heirs  to  enter  the  land,  and  this  was 
accordingly  done.  The  entry  in  Stillman's  name  was  made  under 
the  occupant  law  of  1834. 

We  concur  witli  the  commissioner's  directions,  and  the  finding 
of  the  register  and  receiver,  that  the  proceeding  of  Waters  was  a 
fraudulent  contrivance  to  secure  the  valuable  privilege  of  a 
preference  of  entry.  It  was  an  attempt  to  speculate  on  his  part, 
and  also  on  the  part  of  Stillman  his  co-partner,  by  fraud  and 
falsehood.  They  both  knew  equally  well  that  Waters  was  no 
actual  settler  on  the  public  lands  at  any  time,  and  that  the  affi- 
davits of  Waters  and  Trail  were  false. 

The  [)rinciple  ground  on  which  the  bill  is  founde(J  assumes  that 
the  complainant,  as  assignee  of  Waters'  heirs,  is  entitled  to  a 
decree  against  the  respondent,  because  his  title  was  derived, 
through  Stillman,  and  that  Stillman  came  into  possession  under 
Waters,  and  therefore  Stillman's  assignee  cannot  dispute  the  title 
of  him  under  whom  he  held  possession,  according  to  the  doctrine 
maintained  ])y  this  court  in  the  case  of  ThredgiU  v.  PinUird,  (12 
How.,  24.) 

In  Thredgill's  case  the  transaction  was  fair,  and  obviously 
honest.  Tlie  consideration  between  the  parties  was  full  and 
undoubted  :  their  contracts  bound  them.  But  in  this  case  there 
was  no  legal  contract  between  Stillman  and  Waters.  They  com- 
bined to  defraud  the  government ;  their  agreement  was  contrary 
to  pul)lic  policy,  because  it  was  intended  by  contrivance  to  take 
the  land  out  of  the  market  at  public  sale — a  cherished  policy  of 
the  government.  Such  an  agreement  can  have  no  standing  in  a 
court  of  justice. 


Warren  v.  Van  Brunt.  133" 

But  there  is  another  defense  equally  conclusive.  The  bill  seeks 
the  legal  title  from  Underhill ;  he  holds  under  a  patent,  dated  in 
1838  ;  he  purchased  in  1841,  and  has  been  in  uninterrupted  pos- 
session ever  since.  This  suit  was  brought  in  18f»4.  In  the 
meantime,  the  land  sued  for  has  been  partly  laid  off  into  lots, 
and  become  city  property  ;  yet.  Waters'  claim  lay  dormant  after 
his  entry  was  set  aside  at  the  General  Land  Office  for  eighteen 
years,  and  fourteen  years  after  the  patent  in  Stillman's  name  was 
issued,  and  the  land  conveyed  to  Underhill  by  Wren.  Underhill, 
and  those  holding  under  him,  have  held  possession  from  1841  to 
the  time  when  this  suit  was  brought ;  and,  in  the  meantime,  the 
land  had  greatly  increased  in  value,  and  changed  in  its  circum- 
stances. These  facts  present  a  case  on  which  a  court  of  equity 
cannot  decree  for  the  complainant,  if  there  was  no  other  defense. 

The  question  is  again  raised,  whether  this  entry,  having  been 
allowed  b}^  the  register  and  receiver,  could  be  set  aside  by  the 
commissioner.  All  the  officers  administering  the  public  lands 
were  bound  by  the  regulations  published  May  6,  1836.  2.  L.  L. 
&  O.,  92.  These  regulations  prescribed  the  mode  of  proceeding 
to  vacate  a  fraudulent  occupant  entry,  and  were  pursued  in  the 
case  before  the  court. 

This  question  has  several  times  been  raised  and  decided  in  this 
court,  upholding  the  commissioner's  powers.  Garland  v.  Winn, 
(20  How.,  8) ;  LytJe  v.   The  State  of  Arkansas,  (22  How.) 

For  the  reasons  above  stated,  it  is  ordered  that  the  decree  of 
the  circuit  court  be  affirmed. 


Warren  v.  Van  Brunt. 

October  Term,  1873.— 10  Wallace.  (546. 

Where  two  persons,  before  a  public  survey  of  it,  made  a  settlement 
in  Minnesota  on  tlie  .same  forty  acres  of  land  (a  quarter  of  a  quarter- 
section  and  the  smallest  legal  subdivision  allowed  by  statute),  wliich 
settlement  was  in  point  of  fact  made  at  the  same  time — a  joint  settle- 
ment therefore— the  circumstance  that  in  his  declaratory  statement 
one  of  the  settlers  has  stated  that  his  settlement  was  made  on  a  day 
anterior  to  tlie  day  whicli  the  otiier  in  liis  declaratory  statement  fixed 
as  the  date  of  his.  is  not  a  circumstance  which  will  induce  this  court 
to  reverse  a  decision  of  the  register  and  receiver  of  tlie  land  office, 
affirmed  by  the  Secretary  of  the  Interior,  aAvarding  tlie  tract  to  him 


134  Wariien  v.  Van  Brunt. 

who  tlu>  otluM-  allofjo:^  made  the  later  settlement;  there  being  no 
fraud,  imposition,  or  mistake  in  the  case.  'J'he  conrt  will  regard  the 
facts  of  the  case,  not  the  allegations  of  the  parties. 

2.  Where  two  joint  settlers  on  such  a  piece  of  land  built  from  joint 

means  and  for  a  time  jointly  occupied  a  house  there,  which  house 
(on  a  misunderstauding  between  them  and  the  running  of  a  line 
apportioning  the  land  between  them)  was  found  to  be  on  the  land 
of  one  who  now  removed  from  and  remained  away  from  tlie  land 
for  several  months,  leaving  the  other  in  possession  of  the  house. 
not  as  his  tenant,  but  as  part  owner,  and  till  he  (the  one  on  whose 
land  it  was)  could  pay  to  the  other  half  the  sum  which  its  erection 
had  cost,  and  then,  on  payment  of  this  money,  evicted  the  co-settler 
and  put  his  own  tenants  in.  (lie  himself  occupying  a  wholly  different 
forty  acres,  while  the  co-settler  reiTiained  in  effect  on  the  old  tract. 
and  buUt  and  afterwards  occupied  a  house  for  himself  and  family 
on  it):  Hehl.  on  a  bill  which  set  up  a  -superior  right  of  pre-emption 
to  the  whole  forty  acres,  and  not  an  equitable  right  to  a  joint  owner- 
ship, or  an  ownership  to  part  as  settled  by  the  dividing  line,  that 
this  court  would  not  reverse  a  decision  of  the  register  and  receiver, 
affirmed  by  the  Secretary  of  the  Interior,  which  on  a  similar  claim 
by  the  party  who  had  removed  awarded  the  whole  to  the  other  party 
who  with  his  familj'  remained.' 

3.  A  party  cannot  set  up  in  his  replication  a  claim  not  in  any  Avay  made 

in  his  bill,  and  the  granting  of  which  he  aslvs  in  his  replication  only 
in  the  event  that  the  case  made  in  his  bill  fails. 

4.  An  entry  of  the  public  land  by  one  person  in  trust  for  another  being 

forbidden  by  statute,  equity  will  not,  on  a  bill  to  enforce  such  a 
trust,  decree  that  any  entry  in  trust  was  made. 2 

Error  to  the  Supreme  Court  of  Minnesota. 

This  was  a  contest  between  two  pre-emption  claimants.  Warren 
on  the  one  hand  and  the  representatives  of  Van  Brnnt,  deceased, 
on  the  other,  for  the  ownership  of  the  southeast  quarter  of  the 
northeast  quarter-section  13.  township  108  X..  R.  27  W.  (forty 
acres),  in  the  State  of  Minnesota. 

These  last  had  the  legal  title  under  a  patent  from  the  United 
States,  issued  upon  the  claim  of  Van  Brunt.  Warren,  alleging 
that  he  had  an  elder  and  better  right  of  pre-emption,  sought  by 
his  action  in  the  court  below  to  charge  the  representatives  of 
Van  Brunt  as  his  trustees,  and  to  compel  them  to  convej^  to  him 
the  title  they  acquired  by  the  patent. 

The  case  was  decided  below  upon  facts  found  by  the  court  and 
stated  in  the  record.  No  exception  was  taken  to  the  finding,  and 
the  question  presented,  therefore,  for  the  determination  of  this 
court  was,  whether  upon  the  facts  as  found  there  was  error  in  the 


Warren  v.  Van  Brunt.  135 

■decree.     These  facts  were  sulistantially  as  follows  :  Warren  and 
Van  Brunt  beina;  each  in  May.   1853.  and  thereafter  until  the 
death  of  Van  Brunt,  legally  competent  to  avail  themselves  of  the 
pre-emption  laws  of  the  United   States,  in  the  said  month  jointly 
selected  for  occupancy  about  two  hundred  and  eighty  acres  of 
unsurveyed  public  lauds  in  ^Minnesota,  to  which  the  Indian  title 
had  been  extinguished.    (This  was,  of  course,  meant  to  correspond 
with    seven    tracts  of  forty  acres  each,  i.  e.,  seven  quarters  of 
quarter-sections.)     They  settled  upon  the  forty  acres  in  dispute, 
and  after  ploughing  and  planting  two  or  three  acres  proceeded 
with  their  joint  means  and  labor  to  erect  thereon  a  house  for  a 
residence,  into  which  they  moved  with  their  families  in  June. 
They  occupied  this  house  together  until  the  18th  of  July,  when,  a 
difficulty  having  arisen  between  them,  a  contract  of  partition  was 
entered  into,  by  which,  after  establishing  a  dividing  line  which 
ran  diagonally  across  the  premises  in   controversy  and  through 
the  ploughed  lands,  it  was  agreed  that  Warren  should  have  the 
sole  and  exclusive  use  of  all  the  lands  selected  for  occupancy 
situated  on  the  east  side  of  the  line,  and  Van  Brunt  of  all  on  the 
west.    The  house  they  had  built  was  on  the  part  set  oflf  to  Warren, 
but  hx  the  agreement  Van  Brunt  was  to  have  the  exclusive  use  of 
it  until  i\Iay  1.  18,54.  when,  on  the  payment  to  him  of  one-half 
its  cost,  he  was  to   surrender  the  possession  to  Warren  for .  his 
exclusive  use  thereafter.     Upon  the  execution  of  this  contract 
Warren  went  with  his  family  to  the  town  of  Mankato,  a  town  in 
the  neighborhood  of  the  two   hundred  and  forty  acres  of  land, 
but  not  on  any  part  of  it,  leading  Van  Brunt  in  the  house.     Soon 
after,  and  within  a  reasonable  time,  he  began  the  erection  of  a 
new  house  on  a  part  of  the  premises  set  off  to  him.  adjoining  the 
disputed  property,  into  which  he  moved  in  the  autumn  of  1853 
with  his  family.     Van  Brunt  continued  to  occupy  the  first  house 
in   accordance  with  the  terms  of  the  contract  of  partition  until 
May  1,  1854.  when  Warren,  having  paid  him  for  one-half  its  cost, 
evicted   him  by  legal  proceedings.     After  his  eviction  he  went 
into  an  abandoned   -claim-shanty'"  on  the  part  of  the  premises 
set  off  to  him,  and  remained  there  from  two  to  four  weeks,  during 
which  time  he  erected  a  new  house  upon  the  disputed  property, 
but  on  his  side  of  the  dividing  line.     As  soon  as  this  house  was 
completed  he  moved  into  it  with  his  family,  and  resided  there 
until  his  death,  on  the  5th  of  January,  A.  D.  1856.     His  family 
occupied  the  same  house  as  their  residence  after  his  death  until 


136  Warren  v.  Van  Brunt. 

their  title  was  perfected  under  his  claim.  In  1853  and  18o4  he 
plonglied  and  cultivated  about  twenty  acres  of  the  land  occupied 
by  him.  seventeen  of  which  were  on  the  disputed  forty.  In  1854 
and  1855  he  ploughed  a  few  acres  more,  and  cultivated  all  his 
improved  lands.  In  1855  he  inclosed  all  his  improvements  with 
a  fence,  and  dug  some  ditches.  In  addition  to  his  house  he  put 
up  on  the  disputed  property  a  large  corn-crib,  a  cow-house,  and 
other  outbuildings. 

After  the  eviction  of  Van  Brunt  from  the  first  house.  Warren 
moved  into  it  and  resided  there  until  the  autumn  of  1854.  He 
then  went  back  to  the  house  he  luiilt  after  the  partition,  and 
remained  there  until  after  Van  Brunt's  heirs  perfected  their  title. 
He  cultiuated  and  improved  his  lands  upon  the  east  of  and  up  to 
the  agreed  division  line,  by  fencing,  ploughing  and  planting,  and 
kept  tenants  in  the  first  house  all  the  time  after  he  left  it  until 
the  commencement  of  the  action  in  the  court  below.  Neither  of 
the  parties  disputed  the  right  of  the  other  to  occupy  and  culti- 
vate, up  to  the  line  of  division,  until  after  the  title  of  the  Van 
Brunt  heirs  was  perfected. 

The  township  lines  were  surveyed  through  the  public  lands, 
which  included  the  premises  in  dispute,  in  1854.  and  the  subdi- 
vision lines  in  1855.  When  the  township  lines  were  run,  Warren 
was  residing  with  his  family  in  the  first  house,  and  his  improve- 
ments on  the  disputed  forty,  including  the  house,  were  then  equal 
to,  if  not  greater  in  value,  than  those  of  Van  Brunt. 

On  the  19th  July.  1855,  Van  Brunt  filed  in  the  land  office  his 
declaratory  statement  under  the  pre-emption  laws,  claiming  the 
right  to  enter  and  purchase  the  north  half  of  the  southeast  quar- 
ter and  south  half  of  the  northeast  quarter,  section  13,  T.  108 
N.,  R.  27  W..  containing  one  hundred  and  sixty  acres.  His  claim 
included  the  forty  acres  in  dispute.  In  his  statement,  he  gave 
the  4i/i  of  June,  1855,  as  the  date  of  his  settlement. 

It  appeared  from  the  pleadings,  and  the  statements  of  the  coun- 
sel for  the  plaintiff  in  the  argument,  that  in  December,  1855, 
Warren  filed  his  declaratory  statement,  also  claiming  the  right 
under  the  pre-emption  laws  to  enter  and  purchase  the  disputed 
premises,  and  the  northwest  quarter,  southwest  quarter,  and  south 
half  of  the  northwest  quarter,  section  18.  T.  108  N..  R.  26  W.,  in 
all  one  hundred  and  sixty  acres.  He  gave  the  date  of  his  settle- 
ment as  November  17th,  1853. 

On   the  7th  March,   1856,  Warren    served  a   notice    upon  the 


VYarren  c.  Van  Brunt.  137 

widow  and  adniiiiistratrix  of  Van  Brunt,  that  he  should  contest 
her  claim  to  the  pre-emption  of  the  forty  acres  in  controversy, 
and  in  consequence  of  this  notice,  both  claimants  appeared  before 
the  register  and  receiver  of  the  land  office,  and  produced  and 
examined  their  witnesses.  After  a  full  hearing,  these  officers 
were  unable  to  agree  upon  a  decision,  and  the  papers  and  proofs 
were  thereupon  sent  to  the  CoiBmissioner  of  the  General  Land 
Office,  who.  on  the  4th  of  April.  1857.  decided  in  favor  of  the 
Van  Brunt  claim.  Warren  appealed  to  the  Secretary  of  the 
Interior,  who.  on  the  31st  of  October,  A.  D.  1857,  affirmed  the 
decision  of  the  commissioner.  On  the  15th  of  May,  1860,  a 
patent  was  issued  to  the  heirs  of  Van  Brunt  for  the  whole  one 
hundred  and  sixty  acres  claimed  by  him.  In  January,  1857, 
Warren  received  a  patent  for  the  one  hundred  and  twenty  acres 
claimed  by  him  in  section  18.  and  in  February,  1865,  filed  a  bill 
in  one  of  the  State  courts  of  Minnesota  to  recover  from  Van 
Brunt's  heirs  the  disputed  forty  acres. 

The  bill  prayed  a  decree  that  Van  Brunt's  representatives 
should  convey  to  Warren  the  whole  forty  acres. 

The  answer — which  mentioned  as  part  of  a  history  of  things 
which  it  gave,  that  the  parties  had  divided  their  claims  by  run- 
ning a  line,  which  line  they  supposed,  when  they  made  it,  would 
correspond  with  the  east  line  of  the  forty  acres,  as  that  line  would 
be  laid  down  by  the  government  survey — resisted  this  claim  of 
the  plaintitf,  and  asserted  title  in  the  whole  forty  acres  in  Van 
Brunt's  representatives. 

The  replication,  denying  that  the  division  line  as  thus  agreed 
on  gave  Van  Brunt  any  title  to  the  forty  acres,  thus  continued  : 

"  And  the  plaintiff  prays,  in  addition  to  the  prayer  of  origi- 
nal complaint,  that,  in  case  the  court  should  not  find  for  the 
plaintiff,  that  he  is  entitled  to  a  decree  for  a  release  of  the  tvhole 
disputed  forty  acres,  that  then  the  court  may  ascertain  hoiv  the 
said  alleged  division  line  divides  said  forty  ((.cres.  and  that  the 
defendants,  on  terms  of  payment  of  the  original  cost  of  the 
same,  be  decreed  to  convej^  so  much  thereof  as  may  be  found  to 
have  been  assigned  to  him,  to  the  plaintiff." 

The  Supreme  Court  of  Minnesota,  to  which  the  case  finally 
got,  adjudged  the  title  to  be  in  the  heirs  of  Van  Brunt,  and 
Warren  brought  the  case  here  on  error. 


138  Warren  v.  Van  Brunt. 

Messrs.  M.  S.  WUldnson  and  C.  K.  Davis  for  the  plaintiff  in 
error. 

1.  Warren,  in  his  declaratory  statement,  dates  his  settlement 
as  of  November  17th.  1853.  Van  Brunt  does  not  pretend  that 
his  was  made  prior  to  June  4th,  1855.  Warren's  settlement  was 
thus  anterior  to  Van  Brunt's.  Where  two  or  more  persons  have 
settled  on  the  same  quarter-section,  the  right  of  pre-emption 
belongs  to  him  who  has  made  the  first  settlement. 

•2.  If,  in  this  view  of  the  case.  W^arren  is  not  entitled  to  the 
whole  forty  acres,  a  joint  entry  should  have  been  allowed  by  the 
land  department.  There  is  nothing  in  the  pre-emption  laws 
which  forbids  a  joint  settlement,  declaration  and  purchase.  The 
admitted  rule,  '-that  where  two  or  more  persons  have  settled 
upon  the  same  quarter-section,  each  shall  be  permitted  to  enter 
his  improvement  as  near  as  may  be  by  legal  subdivisions."'  is  very 
well  so  far  as  it  goes,  but  it  will  not  apply  where  both  claimants 
have  their  improvements  on  the  same  quarter  of  the  quarter- 
section,  or  forty  acres,  the  smallest  legal  subdivision.  In  such 
a  case,  exact  justice  would  seem  to  require  that  they  enter 
jointly  the  whole.  (Opinion  of  the  Secretary  of  the  Interior, 
Luughton  v.  Caldwell,  1  Lester's  Land  Laws,  p.  387,  Nos.  430-431.) 

3,  Finally,  the  very  least  that  Warren  is  entitled  to.  is  the  part 
of  what  now  turns  out  to  be  the  quarter  of  a  quai'ter-section  ; 
that  would  fall  to  him  by  giving  effect  to  the  dividing  line  agreed 
on  by  the  parties  before  the  government  survc3\  That  is  what 
he  asks  for  as  an  alternative. 

Messrs.  J.  31.  Carlisle  and  J.  D.  McPherson  contra. 

Tlie  Chief  JrsTicE,  having  stated  the  case,  delivered  the  opin- 
ion of  the  court. 

When  Warren  and  Van  Brunt  made  their  settlement  upon  the 
lands  in  1853,  they  acquired  no  right  of  pre-emption,  as  the  act  of 
Congress- then  in  force  only  gave  that  right  to  settlers  upon  lands 
in  the  then  Territory  of  Minnesota  which  had  been  surveyed.  (5 
Stat,  at  Large,  455,  §  10.)  On  the  4th  of  August,  A.  D.  1854,  the  pro- 
visions of  the  pre-emption  act  were  extended  to  unsurveyed  lands 
in  that  territor}' ;  but  it  was  further  provided  that  if,  when  the  lands 
were  surveyed,  it  should  appear  that  two  or  more  persons  had 
settled  upon  the  same  quarter-section,  each  should  be  permitted 
to  enter  his  improvements,  as  near  as  might  be  by  legal  subdivis- 
ions.    (10  Stat,  at  Large.  576.) 


Warren  v.  Van  Brunt.  139 

There  is  no  legal  subdivision  of  the  public  lands  less  than  a 
quarter  of  a  quarter-section,  or  forty  acres,  except  in  the  case  of 
fractional  sections.  The  lands  in  controversy,  therefore,  could 
not  haA'e  been  subdivided  for  the  purj^oses  of  entry  and  purchase. 
The  forty  acres  must  be  taken  as  a  whole  or  not  at  all. 

Warren  and  Van  Brunt  each  claimed  the  right  to  purchase  the 
whole.  There  could  be  no  entry  by  either  until  the  questions 
arising  between  them  had  been  settled. 

To  meet  such  a  case,  the  act  of  Congress  under  which  they 
each  made  claim,  provided  that  the  register  and  receiver  of  the 
land  district  in  which  the  land  was  situated  should  make  such 
settlement,  subject  to  an  appeal  to,  and  revision  by,  the  Secretary 
of  the  Interior.    (5  Stat,  at  Large,  455.  §11:9  Stat,  at  Large.  395. 

§3-) 

The  Commissioner  of  the  General  Land  Office  exercised  a  sujDer- 
vision  over  this  action  of  the  register  and  receiver  under  his  gen- 
eral powers  in  respect  to  private  land  claims  and  the  issuing  of 
patents.  (5  Stat,  at  Large.  107.  §  1  ;  BarnarcVs  Heirs  v.  Ashley's 
Heirs.  18  How.,  44.)  The  issue  of  th^  patent  upon  the  award  of 
these  officers  was  final  and  conclusive  as  between  the  United 
States  and  the  several  claimants.  It  passed  the  legal  title  to  the 
patentee.  The  remedj^  of  the  defeated  party,  if  any  thereafter, 
was  by  proceeding  in  the  courts  against  the  patentee  or  those 
claiming  under  him. 

It  is  claimed  on  the  part  of  the  defendants  in  error  that  the 
decision  of  the  government  oflflcers  in  this  case  is  conclusive  as 
between  the  claimants  themselves,  inasmuch  as  there  was  an 
actual  submission  of  the  controversy^  by  both,  and  the  court  has 
found  that  there  was  no  fraud,  unfairness,  or  misconduct  in  the 
hearing  or  in  the  production  of  the  testimony,  either  on  the  part 
of  Van  Brunt  or  his  heirs,  or  the  several  officers  who  were  called 
upon  to  act. 

This  question  has  recently  been  fully  considered  by  this  court, 
in  the  case  of  Johnson  v.  Towsley,  (13  Wallace,  72),  and  it  was 
there  held  (page  86)  that  '-when  those  officers  decided  contro- 
verted questions  of  fact,  in  the  absence  of  fraud  or  imi)ositions, 
or  mistake,  their  decision  on  those  questions  will  be  final."  but 
(page  87)  that  "it  was  the  right  of  the  proper  courts  to  inquire, 
after  the  title  had  passed  from  the  government  and  the  question 
became  one  of  private  right,  whether,  according  to  the  estab- 
lished rules  of  equity  and  the  acts  of  Congress  concerning  the 


140  Warren  v.  Van  Brunt. 

public  lands,  the  party  holdino;  that  title  should  hold  aV)Solutely 
as  his  own  or  as  trustee  for  another."  AVe  are  satisfied  with  this 
ruling,  and  this  leads  us  to  inquire  whether,  upon  the  facts  as 
found  by  the  court,  the  officers  of  the  government  did  err  in 
awarding  the  patent  to  Van  Brunt.  The  record  does  not  disclose 
the  facts  found  by  the  officers. 

It  is  first  contended  by  Warren  that  the  patent  should'  have 
been  issued  to  him,  because  his  settlement  upon  the  disputed 
premises  was,  both  in  fact  and  by  the  declaratory  statements  of 
the  respective  parties,  anterior  to  that  of  Van  Brunt,  and  because 
bj-  the  act  of  Congress  the  first  settlement  gives  the  better  right. 
It  is  not  important  for  us  to  know  what  the  claims  of  the  parties 
have  been.  We  must  look  to  the  facts  as  they  actually  existed, 
and  from  these  it  appears  that  neither  of  the  parties  had  an 
adA'^antage  over  the  other  by  reason  of  a  prior  settlement.  They 
both  went  upon  the  premises  at  the  same  time  and,  for  a  while,  tlieir 
occupancy  was  joint.  After  the  partition.  Van  Brunt  remained  in 
the  house  alone.  He  was  there  in  no  respect  as  the  tenant  of 
Warren,  but  by  reason  of  his  right  as  part  owner.  His  short 
absence  after  his  eviction  upon  his  lands  adjoining,  cannot  be 
considered  an  abandonment  of  his  possession,  for  he  must  have 
been  all  the  time  at  work  upon  his  new  house,  which  was  finished 
and  ready  for  occupation  in  from  two  to  four  weeks.  Warren  was 
absent  at  Mankato,  after  the  partition,  from  July  until  October, 
and  he  did  not  actually  reside  himself  on  the  disputed  forty  acres 
many  months.  He  had,  therefore,  no  claim  superior  to  that  of 
Van  Brunt  on  account  of  his  possession. 

It  is  next  insisted  that  a  joint  entry  of  the  forty  acres  by  the 
two  should  have  been  permitted.  No  such  demand  was  made 
upon  the  government  by  Warren.  He  claimed  the  riglit  to  enter 
the  wliole,  and  upon  that  claim  the  parties  went  to  a  hearing. 
He  might  have  asked  to  make  his  entry  jointly  with  Van  Brunts 
but  he  did  not.  He  is  concluded  by  liis  election  made  at  the 
time.  Having  been  defeated  ui)on  his  claim  as  made,  lie  cannot, 
in  the  absence  of  fraud  or  surprise,  come  into  court  and  ask 
relief  upon  another  which  he  might  have  urged  then.  Besides, 
he  asks  no  such  relief  in  his  bill  wliich  is  the  foundation  of  the 
present  proceeding.  He  there  claims  a  superior  right  of  pre- 
emption to  the  whole,  and  not  an  equitable  right  to  a  joint  owner- 
ship. 

It  is  again  insisted  that  a  decree  should  have  been  entered  in 


Warren  v.  Van  Brunt.  141 

favor  of  Warren,  charging  the  heirs  of  Van  Brnnt  as  his  trustees 
for  all  that  part  of  the  premises  situated  on  the  east  side  of  the 
partition  line.     This  claim  was  not  made  in  the  bill ;  but  the  con- 
tract of  partition  having  been  set  out  in  the  answers  for  the  ]iur- 
pose  of  explaining  the  character  of  the  occupancy  of  Van  Brunt. 
Warren  asked  in  his  replication  to  be  allowed  the  lienefit  of  it  in 
case  he  failed  to  maintain  his  right  to  the  whole.     He  was  willing 
to  repudiate  the  contract  if  by  so  doing  he  could  get  an  advantage, 
but  if  he  failed  in  that,  insisted  upon  its  enforcement.     But  such 
a  contract  cannot  be  enforced  to  any  extent.     The  pre-emption 
laws  provided,  at  the  time  of  this  entry  and  purchase,  that  before 
any  person  should  be  allowed  to  enter  lands  upon  a  claim  for 
pre-emption  he  must  make  oath  that  he  had  not  directly  or  indi- 
rectly made  any  agreement  or  contract  in  any  way  or  manner 
with  any  person  by  which  the  title  he  might  acquire  by  his  pur- 
chase  should  enure  in  whole  or  in  part  to  the  benefit  of  any 
person  except  himself.     Forfeiture  of  title  to  the  land  purchased 
and  the  money  paid  for  it  was  made  the  penalty  of  false  swearing 
in  this  particular.     An  entry  could  not  have  been  made,  therefore, 
by  Van  Brunt  in  trust  for  Warren  ;  and  if  it  could  not  have  been 
made  a  court  of  equity  will  not  decree  that  it  was.     All  contracts 
in  violation  of  this  important  provision  of  the  act  are  void,  and 
are  never  enforced.     It  has  been  so  decided  many  times  l)y  the 
Supreme  Court  of  Minnesota.     {St.  Peter  Co.  v.  Bnvl'er,  5  Minne- 
sota. 199;  Evans  v.   Folsow,  5   Minnesota,  422;   Bruggermav  \. 
Hoerr,  7  Minnesota,  343  ;  McCxe  v.  Smith,  9  Minnesota,   259.) 
We  are  satisfied  with  these  decisions. 

In  our  opinion  there  was  no  error  in  the  decision  of  the  govern- 
ment officers,  or  in  the  decree  of  the  Supreme  Court  of  Minnesota. 

Decree  affirmed. 


1 .  Where  two  settlers  reside  on  the  same  subdivision  of  public  land, 
both  being  qualified  and  having  a  right  of  pre-emption  to  the  land,  a 
mutual  agreement  between  them  that  one  of  them  shall  enter  tlie  land 
under  the  law  and  then  convey  to  the  other  settler  his  portion,  will  be 
enforced  in  a  court  of  equity.  Snoiv  v.  Flannery.  K)  Iowa,  318;  Enae  v. 
Treadway.  4  Nevada,  45.5;  Treadway  \.  Wilder.  8  Nevada,  91  ;  HavtiUon  v. 
Foidkes,  3  Barb.  (Ark.),  340. 

2,  Such  contracts  will  not  be  enforced.  Marston  v.  Rowe.,  43  Ala.,  271 ; 
Thurston  \.  Alva,  4.")  Cal.,  16;  Houston  v.  Walker,  47  CaL,  484;  Brake  \. 
Ballou,  19  Kans.,  397;  Wilkinson  v.  Mayfield,  27  iliss.,  542;  Millei-  v. 
Davis,  50  Mo..  572.     And  money  paid  on  sucii  illegal  contracts  cannot 


142  Johnson  v.  Towsley. 

be  recovered  back.  St.  Petfr  Co.  v.  Bimkei\  ')  Minn..  192.  But  if  after  entry 
the  contract  is  confirmed  by  receiving-  tlie  balance  of  the  purchase-money,, 
it  will  be  enforced.  M<'ij  \  >-'!,nnus,  20  111..  !».'..  Or  if  a  conveyance  is 
executed  after  entry  it  will  not  be  set  aside.  A  iiiswmih  awl  S-one  v.  Miller 
atid  Milhr.  Western  Jurist.  Auoust  number.  1S7S. 

If  one  get  the  legal  title  under  such  a  void  contract  to  hold  as  security 
for  a  debt,  when  tlie  debt  is  paid  a  court  of  equity  will  decree  a  recon- 
veyance. Kiser  v.  Ijoc.k.,  9  Ala.,  269.  Or  if  one  advance  the  money  to  a 
pre-(;mptor  to  pay  for  the  land  upon  an  agreement  that  he  should  have 
one-half  of  the  land,  and  the  certificate  of  eniry  is  assigned  to  him.  and 
he  obtains  the  patent  in  his  own  name,  he  will  be  decreed  to  convey  one- 
half  of  the  land  to  the  pre-emptor.     Brewery.  Brewer.,  19  Ala.,  481. 


Johnson  v.  Towslp^y. 
December  Term,  1871.— 13  Wallace,  72. 

The  question  of  the  conclusiveness  of  the  action  of  the  land  officers  in 
issuing  a  patent  on  the  rights  of  other  persons  reconsidered  and 
former  decisions  affirmed. 

The  tenth  section  of  the  act  of  June  12th,  18.58  (11  Stat,  at  Large,  326), 
which  declares  that  the  decision  of  the  commissioner  shall  be  final, 
means  final  as  to  the  action  of  the  Executive  Department. 

The  general  proposition  is  recognized  that  when  a  special  tribunal  is 
authorized  to  hear  and  determine  certain  matters  arising  in  the  coui'se 
of  its  duties,  its  decisions  within  the  scope  of  its  authority  are 
conclusive. 

Under  this  principle  the  action  of  the  Land  Department  in  issuing  a 
patent  is  conclusive  in  all  courts  and  in  all  proceedings,  where  by  the 
rules  of  law  the  legal  title  must  prevail. 

But  courts  of  equity,  both  in  England  and  in  this  country,  have  always 
had  the  power  in  certain  classes  of  cases  to  inquire  into  and  correct 
injustice  and  wrong,  in  both  judicial  and  executive  action,  founded 
in  fraud,  mistake,  or  other  special  ground  of  equity,  when  private 
rights  are  invaded. 

In  this  manner  the  most  solemn  judgment  of  courts  of  law  have  been 
annulled,  and  patents  and  other  important  instruments  issuing  from 
the  crown  or  other  executive  branch  of  the  government  have  been 
reformed,  corrected,  declared  void,  or  other  appropriate  relief 
granted. 

The  land  oflace,-  dealing  as  it  does  with  private  rights  of  great  value 
in  a  manner  particularly  liable  to  be  imposed  upon  by  fraud,  false 
swearing,  and  mistakes,  exemplifies  the  value  and  necessity  of  this 
jursdiction. 

The  decisions  of  this  coxn-t  on  this  subject  establish  : 

i.  That  the  judiciary  will  not  interfere  by  mandamus,  injunction^ 


Johnson  v.  Towsley.  143 

or  otherwise,  witli  the  otlicers  of  the  huid  depiirtment  in  the  exer- 
cise of  tlieir  duties,  wiiile  the  matter  remains  in  their  hands  for 
decision. 

ii.  I'hat  tlieir  decision  on  tlie  facts  wliicli  must  be  the  foundation 
of  their  action,  unaffected  by  fraud  or  mistake,  is  conclusive  in  the 
coui'ts. 

iii.  But  tliat  after  the  title  lias  passed  from  the  government  to  indi- 
^^duals.  and  the  question  has  become  one  of  private  right,  the  juris- 
diction of  courts  of  equity  may  be  invoked  to  ascertain  if  the  pat- 
entee does  nor.  hold  in  trust  for  other  parties. 

9.  In  deciding  this  question,  if  it  appears  that  the  party  claimiug  tlie 

equity  has  established  his  right  to  the  land  to  the  satisfaction  of  the 
land  department  in  the  true  construction  of  the  acts  of  (  ongTess, 
but  that,  by  an  erroneous  construction,  the  patent  has  been  issued 
to  another,  the  court  will  correct  the  mistake.  Minnesota  v.  Buchel- 
der  (1  Wallace,  109,,  Silcer  v.  Ladd  (7  Id.,  210.) 

10.  The  fourth  section  of  the  act  of  March  3d,  1843,  concerning  two 
declaratory  statements  of  the  same  pre-emptor,  is  confined  to  pre- 
emptions of  land  subject  to  private  entry. 

1 1 .  The  fifth  section  of  that  act  relating  to  lands  not  proclaimed  for 
sale,  does  not  forfeit  the  pre-emptor's  right  absolutely,  when  he  has 
failed  to  make  his  declaratory  statement  witliin  three  months,  bvit  it 
gives  the  better  right  to  any  one  else  who  has  made  a  settlement  or 
declaratory  statement  on  the  same  land,  before  the  first  settler  has 
made  the  requisite  declaration. 

12.  Therefore,  a  declaratory  .statement  on  such  land  is  valid,  if  made  at 
any  time  before  another  party  commences  a  settlement  or  files  a 
declaration. 

Error  to  the  Supreme  Court  of  Nebraska,  the  case  being  tliis  : 

By  an  act  of  Congress,  approved  September  4th,   1841  (5  Stat. 

at  Large.  4.5.5),  and  entitled.  "An  act  to  appropriate  the  proceeds 

of  the   public  lands,   and  to  grant  pre-emption    rights,"  it   was 

enacted  : 

"  Section  10.  That  from  and  after  the  passage  of  this  act.  every  person 
&c.,  who,  since  the  1st  day  of  -Tune,  A.  D.  1840,  has  made  or  shall  here- 
after make  a  settlement  in  person  on  the  public  land  *  *  *  which 
has  been  or  shall  have  been  surveyed  prior  thereto,  and  who  shall 
inhabit  and  improve  the  same,  and  who  has  or  shall  erect  a  dwelling 
thereon,  shall  be  and  is  hereby  authorized  to  enter  with  the  register  of 
the  land  office  for  the  district  in  which  such  land  may  lie,  by  legal  sub- 
divisions, any  number  of  acres  not  exceeding  KiO,  or  a  quarter-section 
of  land,  to  include  the  residence  of  such  claimant,  upon  paying  to  the 
United  States  the  minimum  price  of  such  land,  subject,  however,  to  the 
following  limitations  and  exceptions  :  No  person  shaU  be  entitled  to 
more  than  one  pre-emptive  right  by  virtue  of  this  act,"  &c.,  &c. 


14-1:  Johnson  v.  Towsley. 

"Section  11.  Tlint  wlicn  two  or  more  persons  shall  have  settled  on 
the  same  (luartcr-seetion  of  laud,  the  right  of  pre-emption  shall  be  in 
hun  or  her  wlio  made  tlie  first  settlement,  ^:c.;  and  all  questions  as  to 
the  right  of  pre-emption  arising  between  dilferent  settlers  sk.ll  be  settled 
by  the  regist>r  (m<i  recen-er  of  the  itixtrirt  irifhin  which  the  land  is  situated, 
sul)jed  III  an  oppeiil  t"  and  a  irrison  In/  the  S,'cre/'tri/  of  the  Trensunj  of  the 
United  Statei.^' 

"Section. 14.  That  this  act  shall  not  delay  the  sale  of  anj'  of  the 
public  lands  of  the  United  States  bej'ond  tiie  time  which  has  been,  or 
may  be,  appointed  by  the  proclamation  of  the  President,  nor  shall  the 
provisions  of  this  act  ])e  available  to  any  person  or  persons  who  shall  \ 

fail  to  make  the  proof  and  payment,  and  file  the  alfidavit  required  before  ^ 

tlie  day  api)ointed  for  tlie  commencement  of  the  sales  as  aforesaid. 

"  Section  15.  'I'hat  whenever  any  person  has  settled  or  shall  settle  and 
improve  a  tract  of  land,  subject  at  the  time  of  settlemtnt  to  private  eidri/,  and 
shall  intend  to  purchase  the  same  under  the  provisions  of  this  act,  such 
person  shall  in  the  first  case,  within  three  months  after  the  passage  of 
the  same,  and  in  the  last  within  thirty  days  next  after  the  date  of  such 
settlement,  file  with  the  register  of  the  proper  district  a  written  statement, 
describing  the  land  settled  upon,  and  declaring  the  intention  of  such 
person  to  claim  the  same  under  the  provisions  of  this  act ;  and  shall, 
where  such  settlement  is  already  made,  within  twelve  months  after  the 
passage  of  this  act,  and  wiiere  it  shall  hereafter  be  made,  within  the 
same  period  after  the  date  of  such  settlement,  make  the  proof,  affidavit, 
and  payment  lierein  required  ;  and  if  he  or  she  shall  fail  to  file  such 
written  statement  as  aforesaid,  or  shall  fail  to  make  such  affidavit,  p' oof. 
and  payment,  within  the  twelve  months  aforesaid,  the  tract  of  land  so 
settled  and  improved  shall  be  subject  to  the  entry  of  any  other  pur- 
chaser." 

A  subsequent  act,  that  of  March  3d,  1843.  (5  Stat,  an  Large. 
620),  entitled  "An  act  to  authorize  the  investigation  of  alleged 
frauds  under  the  pre-emption  laws,  and  for  other  purposes.'" 
thus  enacts  : 

"Section'  4.  That  where  an  individual  has  filed,  under  the  late  pre- 
emption law,  liis  declaration  of  intention  to  claim  the  benefits  of  said  law 
for  one  tract  of  land,  it  shall  not  be  lawful  for  the  same  individual  at  any 
future  time,  to  file  a  second  declaration  for  another  tract. 

"  Section  5.  That  claimants  under  the  late  pre-emption  law,  for  land 
not  yet  proclaimed  for  sale,  are  required  to  mak^  known  their  claims,  in 
wTiting,  to  the  register  of  the  proper  land  office,  *  *  *  within  three 
months  fi  oni  the  time  of  the  settlement,  *  *  *  giving  the  designation  of 
the  tract,  and  the  time  of  settlement;  otherwise  his  claim  to  be  forfeited, 
and  the  tract  awarded  to  the  next  settler,  in  the  order  of  time,  on  the 
same  tract  of  land,  who  shall  hare  given  such  notice  and  otherwis(!  com- 
plied with  the  conditions  of  the  law." 


Johnson  v.  Towsley.  145 

Finally  came  an  act  of  June  12th,  1858.  (11  Stat,  at  Large, 
326.) 

"Skction  10.  That  the  11th  section  of  the  act  of  Congress  approved 
4th  September,  1841,  entitled  '  An  act  to  appropriate  tlie  proceeds  of  the 
public  lands,  and  to  gi-ant  pre-emption  rii^hts,'  be  so  amended  tliat 
appeals  fnnn  the  decisions  of  the  district  ofHcers,  in  cases  of  contest 
between  different  settlers  for  the  right  of  pre-emption,  shall  hereafter 
be  decided  by  the  Commissioner  of  the  General  Land  Office,  whose  decis- 
ion shall  be  /?//«/,  unless  appeal  therefrom  be  taken  to  the  ."Secretary  of 
the  Interior.'" 

With  these  provisions  of  law  in  force,  one  Towsiej-.  on  the  1.5th 
of  June,  1858,  settled,  as  he  alleged,  on  the  W.  |  S.  W.  quarter- 
section  3.  township  15  N.,  range  13  east,  lying  near  the  city  of 
Omaha,  and  made  improvements  upon  the  same  :  and  on  the  4/7/ 
of  Fehraary,  1859,  filed  with  the  register  of  the  laud  office  his 
declaratory  statement  of  an  intention  to  claim  the  land  under  the 
provisions  of  the  act  of  September  4th.  1841  ;  claiming  his  settle- 
ment from  June  15th,  1858.  On  the  5th  of  October.  1860.  one 
Johnson,  also  setting  up  a  settlement,  improvement.  &c..  filed  a 
declaratory  statement  of  his  intention  to  pre-empt  the  same  land 
under  the  act  of  1841. 

The  same  Towsley  had  previously,  to  wit.  ou  the  2d  of  April. 
1858,  filed  a  declaratory  statement  giving  notice  that  he  had  set- 
tled, March  25th,  1858,  upon  other  land,  described  in  the  usual 
manner,  and  claimed  a  pre-emption  riglit  therein  ;  which  land  had 
not  yet  been  offered  at  public  sale  and  thus  rendered  sabjeef  to 
private  entry.  From  this  land  he  withdrew  claim  early  in  the 
following  June,  and  waived  all  claim  to  it  in  favor  of  an  opposing 
settler. 

An  investigation  as  to  the  respective  rights  of  the  two  parties 
was  had  before  the  local  office,  which  resulted  in  a  decision  in 
favor  of  Towsley.  This  decision  was  affirmed  by  the  Commis- 
missioner  of  the  General  Land  Office  :  and  on  the  20th  of  Sep- 
tember, 1862,  Towsley  received  a  patent.  The  dispute  between 
the  parties  being  taken  by  appeal  before  the  Secretary  of  the 
Interior,  that  officer,  on  the  11th  of  July,  1863.  as  appeared  from  a 
statement  of  the  Assistant  Secretary,  decided  in  favor  of  Johnson, 
on  the  ground  that  Towsley,  previously  to  filing  his  declaratory 
statement  claiming  the  land  in  question,  had  filed  a  declaratory 
statement  claiming  the  other  lands. 

After  this,  Johnson  entered  on  the  lands,  and  a  patent  was  issued 

to  him. 

10 


146  Johnson  v.  Towsley. 

In  this  state  of  things  Towsley,  relying  on  his  patent  and  on 
different  acts  of  Congress  regulating  the  public  lands,  filed  his 
bill  in  one  of  the  inferior  courts  of  Nebraska,  against  Johnson 
and  others,  his  grantees,  to  compel  them  to  surrender  their  title 
to  him.  the  existing  evidence  of  which  cast  a  cloud  on  his  own. 
The  court  in  which  the  bill  was  filed  decreed  such  a  surrender, 
and  the  Supreme  Court  of  the  State  on  appeal  affirmed  that  decree, 
Johnson  now  Ijrought  the  case  here  under  the  25th  section  of  the 
Judiciary  Act  of  1789  :  or,  if  the  reader  prefer  so  to  consider, 
under  the  2d  section  of  the  act  of  February  r)th,  1867.  re-enacting 
with  some  change  that  so  well-known  section.  (The  reader  may 
see  the  two  acts  arranged  in  parallel  columns  in  TrebiJcock  v.  Wil- 
son. 12  Wallace,  687.) 

Three  questions  arose  here  : 

1.  Whether,  conceding  that  the  courts  of  Nebraska  had  juris- 
diction in  the  case,  this  court  had  any  under  the  Judiciary  Act  of 
1789  or  1867. 

2.  Admitting,  upon  the  concession  stated,  that  it  had,  whether 
in  view  of  the  language  of  the  10th  section  of  the  act  of  June 
12th,  1858  (quoted  supra),  as  to  the  effect  of  decisions  by  the 
Commissioner  of  the  General  Land  Office,  in  cases  of  contest 
between  different  settlers  for  the  right  of  pre-emption,  either  of 
the  courts  below  had  any  jurisdiction.  Since  if  they  had  not,  this 
court  would  have  none  now. 

3.  Whether,  admitting  that  all  three  courts  had  jurisdiction, 
and  that  the  matter  was  now  properly  here  for  review,  the  decis- 
ion of  the  Supreme  Court  of  Nebraska,  affirming  the  validity  of 
Towsley' s  patent,  was  correct. 

Mr.  Lyman  Trumhwll  for  the  plaintiff  in  error. 

I.  A  question  of  jurisdiction  under  the  25th  section  has  been 
suggested  in  a  case  similar  to  this.  But  we  rely  more  on  other 
points,  one  of  which  includes  merits.    We  assert,  therefore,  that — 

II.  The  act  of  1858,  in  plain  terms  makes  the  decision  of  the 
Commissioner  of  the  General  Land  Office  "  final,"  unless  appeal 
therefrom  be  taken  to  the  Secretary  of  the  Interior ;  when,  of 
course,  the  decision  of  this  officer  must  be  equally  so. 

But  independently  of  this,  though  courts  of  equity  may  inter- 
pose in  cases  of  fraud,  or  to  correct  mistakes  made  in  the  dispo- 
sition of  the  public  lands  by  the  officers  charged  with  that  duty, 
they  cannot  supervise  the  decisions  of  those  officers  when  no  fraud 


Johnson  v.  Towsley.  147 

or  mistake  is  alle2;efi  {Wilcox  v.  Jackson,  13  Peters,  511  ;  Lytle  v. 
Arkansas.  (9  Howard,  333),  other  than  in  arriving  at  a  wrong  con- 
chision.  after  a  full  hearing  of  all  the  parties  in  interest. 

The  case  of  Lytle  v.  State  of  Arkansas.  {22  Howard.  193).  and 
Garland  v.  Wynn,  (20  Id.,  8),  arose  under  pre-emption  acts  prior  to 
1841.  and  before  the  law  vested  the  land  officers  with  authority  to 
settle  questions  arising  between  different  pre-emptors,  or  made  their 
decisions  final.  In  these  cases,  as  well  as  in  the  subsequent  ones 
of  Minnesota  v.  Bachelder,  (1  Wallace,  109),  and  Lindsey  v.  Hawes. 
(2  Black.  5.54).  fraud  and  misrepresentation  were  alleged,  and  in 
most  of  them  the  proceedings  before  the  land  officers  had  been 
ex  parte.  In  none  of  tljem  had  there  been  a  decision  between 
conflicting  claimants  after  a  full  hearing  on  notice  and  final 
appeal  to  the  Secretary  of  the  Interior,  as  in  this  case. 

III.  But  if  this  is  not  so.  and  if  the  ordinary  courts  can  re-ex- 
amine such  cases  as  this.  Towsley  has  no  case. 

I.  He  filed  April  2d,  1858.  his  declaratory  statement,  giv- 
ing notice  that  he  had.  on  the  25th  day  of  March  preceding, 
settled  upon  certain  lands — different  from  those  he  now  claims — 
and  would  claim  a  pre-emption  right  therein.  It  was  not  until 
after  this,  to  wit.  the  15th  of  August.  1858,  that  he  tendered  his 
declaratory  statement  for  the  land  in  controversy.  This  alone  is 
fatal  to  his  case. 

The  prohibition  of  the  4th  section  of  the  act  of  March  3d.  1843, 
against  filing  a  second  declaration,  is  not  limited  to  filings  on 
lands  which  were  subject  to  private  entry,  but  extends  as  well  to 
lands  of  the  class  in  (piestion  which  have  not  been  proclaimed  for 
sale,  the  only  difference  being  that  in  the  one  case  the  law  requires 
the  declaratory  statement  to  be  filed  within  thirty  days,  and  in 
the  other  within  three  months  from  the  date  of  settlement.  But 
the  law  prohibits  the  same  individual  who  has  filed  a  declara- 
tion claiming  one  tract  of  land,  from  afterwards  filing  a  second 
declaration  for  another  tract,  as  much  in  the  one  case  as  the 
other. 

The  section  is  not  limited  to  declarations  which  had  been  filed 
at  the  date  of  its  passage,  but  applies  to  every  case  where  an 
individual  "  at  any  future  time "  shall  offer  to  file  a  second 
declaration.  If  he  -'has  fled  under  the  late  pre-emption  lav:"  for 
one  tract  of  land,  at  the  "  future  time."  when  he  seeks  to  file  a 
second  declaration  for  other  land,  the  second  filing  is  invalid. 


148  Johnson  v.  Towsley. 

The  same  reason  applies  for  coiiflnin*!  a  pre-emption  to  one  filins; 
on  lands  not  i)roclainie(l  for  sale  as  on  those  which  had  been. 

To  allow  a  pre-emptor  to  tile  as  many  declaratory  statements 
on  as  many  different  tracts  of  land  as  he  pleases,  wonld  put  it  in 
his  power  to  keej)  the  pn])lic  lands  from  being  taken  and  settled 
by  others,  wliich  wouhl  be  contrary  to  public  policy  as  well  as  the 
statute.  Tiie  policy  of  the  government  has  always  been  to  sell 
its  lands  to  actual  settlers,  and  not  let  them  fall  into  the  hands 
of  speculators.  Hence,  it  has  often  delayed  proclaiming  lands 
for  sale  that  actual  settlers  might  take  them  ;  but  this  policy 
would  be  thwarted  if  a  single  pre-emptor  could  file  declaratory 
statements  for  as  many  tracts  as  he  pleased. 

2.  But  a  stronger,  and.  we  think,  a  plainly  unanswerable  argu- 
ment against  his  case  remains.     By  the  oth  section  of  the  act  of 
June  3d,  1843,  a  claimant  is  required  to  file  his  declaratory  state- 
ment ••  within  three  months  from  the  time  of  the  settlement :  other- 
wise his  claim  to  be  forfeited,  and  the  tract  awarded  to  the  next 
settler  in  the  order  of  time,  on  the  same  tract  of  land,  who  shall 
have  given  such  notice,  and  otherwise  complied  with  the  condi- 
tions of  tlie  law."     Tills  is  statute  law,  and  imperative.     Towsley 
neither  filed  nor  offered  to  file  his  declaratory  statement  within 
the  three  months  from  the  time  of  his  settlement  upon  the  land, 
and  his  claim  as  a  pre-emptor  thereby  became  forfeited.     If,  after 
having  occupied  the  land  nearly  a  year,  he  was  at  liberty  to  file 
a  declaratory  statement,  asserting   his  settlement  to  have  been 
within  tlu-ee  months,  then  he  could  occupy  the  land  indefinitely, 
and  need  never  file  his  declaratory  statement,  and  the  law  requir- 
ing him  to  do  so  within  the  three  months  becomes  nugator3^     No 
other  individual  could  settle  upon  the  land  and  pre-empt  it,  because 
Towsley.  as  soon  as  such  an  attempt  should  be  made,  would  have 
it  in  his  power  to  defeat  him  by  filing  a  declaratory  statement, 
dating  his  settlement,  not  at  the  time  it  was  actuall}'^  made,  but 
at  any  time  within  three  months  which  should  be  anterior  to  that 
of  the  other    claimant.     Towsley* s  declaratory   statement,  filed 
February  4th.  1809,  claiming  a  settlement  June  loth.  18.58.  was  a 
nullity. 

By  the  act  of  1841.  individuals  settling  on  lands  not  proclaimed 
for  sale  were  not  required  to  file  declaratory  statements,  and  in 
case  of  dispute  between  pre-emptors,  the  right  of  pre-emption 
was  declared  to  be  in  him  who  made  the  first  settlement ;  but  the 
act  of  1843  declared  the  claim  of  the  first  settler  forfeited  unless 


Johnson  v.  Towsley.  149 

he  filed  a  declaratory  statement  within  three  months  from  the 
time  of  settlement.  Towsley  having  failed  to  file  his  declaratory 
statement  as  required  by  law,  the  land  was  properlj^  awarded  to 
Johnson,  who  was  the  next  settler,  and  complied  with  the  pre- 
emption laws. 

[There  were  some  other  questions  presented  in  the  brief  of  the 
learned  counsel,  such  as  supposed  defects  in  the  bill,  and  whether 
on  the  evidence  Towsley  made  the  necessary  settlement  and  owned 
the  improvements,  which  this  court  declared  were  not  within  its 
cognizance.  It  was  also  argued  that  Towsley  forfeited  his  right 
by  entering  into  contracts,  by  which  his  title  should  enure  to  the 
benefit  of  others  than  himself,  in  violation  of  the  loth  section  of 
the  act  of  1841  :  but  as  the  court  considered  that  no  such  matter 
was  put  in  issue  in  the  pleadings,  and  that  it  could  not  be  con- 
sidered here,  the  reporter  makes  no  further  mention  either  of  the 
questions  or  the  matter  referred  to.] 

Mr.  J.  M.  Wooltrort/i,  contra. 

Mil.  Justice  Millek  delivered  the  opinion  of  the  court. 

The  jurisdiction  of  this  court  rests  on  two  grounds  found  in 
the  25th  section  of  the  Judiciary  Act,  or.  perhaps  we  should  rather 
say,  in  the  2d  section  of  the  act  of  February  5th.  18G7.  which 
seems  to  be  a  substitute  for  the  25th  section  of  the  act  of  1789, 
so  far  as  it  covers  the  same  ground.  The  defendant  in  error 
relied  on  his  patent,  as  conclusive  of  his  right  to  the  land,  as  an 
authority  emanating  from  the  United  States,  which  was  decided 
against  him  by  the  iState  court,  and  he  relied  upon  certain  acts 
of  Congress  as  making  good  his  title,  and  the  decision  of  the 
State  courts  was  against  the  right  and  title  set  up  by  him  under 
those  statutes.  Undoubtedly  the  case  is  fairly  within  one  or  both 
of  these  clauses  of  the  act  of  1867,  and  the  conclusiveness  of  the 
patent  and  the  right  of  the  plaintiffs  in  error  claimed  under  the 
statutes  must  be  considered. 

The  contest  arises  out  of  rival  claims  to  the  right  of  pre-emp- 
tion of  the  land  in  controversy.  The  register  and  receiver,  after 
hearing  these  claims,  decided  in  favor  of  Towsley.  the  comidainant, 
and  allowed  him  to  enter  the  land,  received  his  money,  and  gave 
him  a  patent  certificate.  On  appeal  to  the  Commissioner  of  the 
Land  Office  their  action  wss  affirmed,  but  on  a  further  ajjpeal  to 
the   Secretary  of  the  Interior,  the   action   of  these  ofticers  was 


150  Johnson  r.  Towsley. 

reversed  on  a  construction  of  an  act  of  Conijress.  in  which  the 
secretary  diflTered  from  them,  and  under  that  decision  the  patent 
was  issued  to  Johnson. 

It  will  be  seen  by  this  short  statement  ol"  the  case  that  the 
rights  asserted  by  complainant,  and  recognized  and  established 
by  the  Nebraska  courts,  were  the  same  which  were  passed  upon 
by  the  register  and  receiver,  by  the  commissioner,  and  by  the 
Secretary  of  the  Interior  ;  and  we  are  met  at  the  threshold  of  this 
investigation  with  the  proposition  that  the  action  of  the  latter 
officer,  terminating  in  the  delivery  to  the  defendant  of  a  patent 
for  the  land,  is  conclusive  of  the  rights  of  the  parties  not  only  in 
the  land  department,  biit  in  the  courts  and  everywhere  else. 

This  proposition  is  not  a  new  one  in  this  court  in  this  class  of 
cases,  but  it  is  maintained  that  none  of  the  cases  heretofore 
decided  extend,  in  principle,  to  the  one  before  us  :  and  the  ques- 
tion being  pressed  upon  our  attention  with  an  earnestness  and 
fulness  of  argument  which  it  has  not  perhaps  before  received,  and 
with  reference  to  statutes  not  heretofore  considered  by  the  court, 
we  deem  the  occasion  an  appropriate  one  to  re-examine  the  whole 
subject. 

The  statutory  provision  referred  to  is  the  lOth  section  of  the 
act  of  June  12th,  1858  (11  Stat,  at  Large,  326),  which  declares 
that  the  11th  section  of  the  general  pre-emption  law  of  1841,  shall 
"be  so  amended  that  appeals  from  the  decision  of  the  district 
officers,  in  cases  of  contest  between  ditferent  settlers  for  the  right 
of  pre-emption,  shall  hereafter  be  decided  by  the  Commissioner 
of  the  General  Land  Office,  whose  decision  shall  be  final,  unless 
appeal  tlierefrom  be  taken  to  the  Secretary  of  the  Interior." 

The  finality  here  spoken  of  applies  in  terms  to  the  decision  of 
the  commissioner,  and  can  only  be  supposed  to  attach  to  that 
made  by  the  secretary  by  some  process  of  reasoning,  which  implies 
the  absurdity  of  making  the  decision,  on  appeal  to  the  secretary, 
less  conclusive  than  that  made  by  the  inferior  officer.  But  the 
section  under  consideration  is  only  one  of  several  enactments 
concerning  the  relative  duties,  power,  and  authority  of  the  execu- 
tive departments  over  the  subject  of  the  disposition  of  the  public 
lands,  and  a  brief  reference  to  some  of  them  will,  we  think,  show 
what  was  intended  by  this  amendment.  By  the  1st  section  of  the 
act  to  reorganize  the  General  Land  Office,  approved  July  4th,  1836, 
(5  Id.,  107),  it  was  enacted  that  the  executive  duties  now  pre- 
scribed, or  which  may  hereafter  be  prescribed,  by  law,  appertaining 


Johnson  v.  Towsley.  151 

to  the  surveying  and  sale  of  the  public  lands.  **  *  and  the  issuing 
■of  patents  for  all  grants  of  land,  under  the  authority  of  the  United 
States,  shall  be  subject  to  the  supervision  and  control  of  the 
Commissioner  of  the  General  Land  Office,  under  the  direction  of 
the  President  of  the  United  States.  In  the  case  of  Barnard's 
Heirs  V.  AsJih^y's  Heirs,  (18  Howard,  45),  it  was  held  that  this 
authorized  the  commissioner  to  entertain  appeals  from  the  decisions 
of  the  register  and  receiver  in  regard  to  pre-emption  claims,  and 
it  is  obvious  that  the  direct  control  of  the  President  was  contem- 
plated whenever  it  might  be  invoked.  Afterward,  when  the  act 
of  September  4th.  1841,  was  passed,  which  so  enlarged  the  right 
of  pre-emption  as  to  have  been  ever  since  considered  the  main 
source  of  pre-emption  rights,  the  1 1th  section  provided  that  all 
questions  as  to  the  right  of  pre-emption  arising  between  different 
settlers  should  be  settled  by  the  register  and  receiver  of  the  dis- 
trict within  which  the  land  is  situated,  subject  to  an  appeal  to  and 
revision  by  the  Secretarj^  of  the  Treasurj^  of  the  United  States. 

This  provision,  in  the  class  of  cases  to  which  it  referred,  super- 
seded the  functions  of  the  Commissioner  of  the  Land  Office,  as 
revising  officer  to  the  register  and  receiver,  and.  so  far  as  the  act 
of  1836  associated  the  President  with  the  commissioner,  super- 
seded his  supervisory  functions  also.  It  left  the  right  of  appeal 
from  the  register  and  receiver  to  the  Secretary  of  the  Treasury 
direct  as  the  head  of  the  department.  The  10th  section  of  the  act 
of  1858,  so  much  relied  upon  by  the  })laintiffs  in  error,  the  opera- 
tive language  of  which  we  have  quoted,  was  clearly  intended  to 
remedy  this  defect  or  oversight,  and  to  restore  to  the  commissioner 
his  rightful  control  over  the  matters  which  belonged  to  his  bureau. 
In  the  use  of  the  word  final  we  think  nothing  more  was  intended 
than  to  say  that,  with  the  single  exception  of  an  appeal  to  his 
superior,  the  Secretary  of  the  Interior,  his  decision  should  exclude 
further  inquiry  in  that  department.  But  we  do  not  see.  in  the 
language  used  in  this  connection,  any  intention  to  give  to  the  final 
decision  of  the  Department  of  the  Interior,  to  which  the  control 
of  the  land  system  of  the  government  had  been  transferred,  any 
more  conclusive  effect  than  what  belonged  to  it  without  its  aid. 

But  while  we  find  no  support  to  the  proposition  of  the  counsel 
for  plaintiffs  in  error  in  the  special  provisions  of  the  statute 
relied  on,  it  is  not  to  be  denied  that  the  argument  is  miich  stronger 
when  founded  on  the  general  doctrine  that  when  the  law  has  confided 
to  a  special  tril)unal  the  authority  to  hear  and  determine  certain 


152  Johnson  v.  Towsley. 

matters  arising  in  the  course  of  its  duties,  tlie  decision  of  thai 
tribunal,  within  the  scope  of  it  authority,  is  conclusive  upon  all 
others.  That  the  action  of  the  land  office  in  issuing  a  patent  for 
any  of  the  puolic  land,  subject  to  sale  by  pre-emption  or  otherwise, 
is  conclusive  of  the  legal  title,  must  be  admitted  under  the 
principle  above  stated,  and  in  all  courts,  and  in  all  forms  of  judicial 
proceedings,  where  this  title  must  control,  either  by  reasons  of 
the  limited  powers  of  the  court,  or  the  essential  character  of  the 
proceding,  no  inquiry  can  be  permitted  into  the  circumstances 
under  which  it  was  obtained.  On  the  other  hand  there  has  always 
existed  in  the  courts  of  equity  the  power  in  certain  classes  of  cases 
to  inquire  into  and  correct  mistakes,  injustice,  and  wrong  in  Loth 
judicial  and  executive  action,  however  solemn  the  form  which  the 
result  of  that  action  may  assume,  when  ic  invades  private  rights  ; 
and  by  virtue  of  this  power  the  final  judgments  of  courts  of  law 
have  been  annulled  or  modified,  and  patents  and  other  impor- 
tant instruments  issuing  from  the  crown,  or  other  executive  branch 
of  the  government,  have  been  corrected  or  declared  void,  or  other 
relief  granted.  No  reason  is  perceived  why  the  action  of  the  land 
office  should  constitute  an  exception  to  this  principle.  In  dealing 
with  the  public  domain  under  the  system  of  laws  enacted  by 
Congress  for  their  management  and  sale,  that  tribunal  decides 
upon  private  rights  of  great  value,  and  very  often,  from  the 
nature  of  its  functions,  this  is  by  a  proceeding  essentially  ex  parte, 
and  peculiarly  liable  to  the  influence  of  frauds,  false  swearing, 
and  mistakes.  These  are  among  the  most  ancient  and  well-estab- 
lished grounds  of  the  special  jurisdiction  of  courts  of  equity  just 
referred  to.  and  the  necessity  and  value  of  that  jurisdiction  are 
nowhere  better  exemplified  than  in  its  application  to  cases  arising 
in  the  land  office.  It  is  very  well  known  that  these  officers  do  not 
confine  themselves  to  determining,  before  a  patent  issues,  who  is 
entitled  to  receive  it.  but  they  frequently  assume  the  right,  long 
after  a  patent  has  issued  and  the  legal  title  passed  out  of  the 
United  States,  to  recall  or  set  aside  the  patent,  and  issue  one  to 
some  other  party,  and  if  the  holder  of  the  first  patent  refuses  to 
surrender  it  they  issue  a  second.  In  such  a  case  as  this  have  the 
courts  no  jurisdiction?  If  they  have  not.  who  shall  decide  the 
conflicting  claims  to  the  land?  If  the  land  officers  can  do  this 
a  few  weeks  or  a  few  months  after  the  first  patent  has  issued,  what 
limit  is  there  to  their  power  over  private  rights?  vSuch  is  the  case 
of  Stark  v.  Starrs,  (6  Wallace,  402),  in  which  the  patent  was  issued 


Johnson  v.  Towsley.  153 

to  one  party  one  day  and  to  the  other  the  day  after,  for  the  same 
land.  They  are  also  in  the  habit  of  issuing  patents  to  different 
parties  for  the  same  land,  containing  in  each  instrument  thus 
issued  a  reservation  of  the  rights  of  the  other  party.  How  are 
those  rights  to  he  determined,  except  by  a  court  of  equity  ? 
Which  patent  shall  prevail,  and  what  conclusiveness  or  inflexible 
finality  can  be  attached  to  a  tribunal  whose  acts  are  in  their 
nature  so  inconclusive  ?  So,  also,  the  register  and  receiver,  to 
whom  the  law  primarily  confides  these  duties,  often  hear  the  ap- 
l)lication  of  a  party  to  enter  land  as  a  pre-emptor  or  otherwise, 
decide  in  favor  of  his  right,  receive  his  money,  and  give  him  a 
certificate  that  he  is  entitled  to  a  patent.  Undoubtedly  this 
constitutes  a  vested  right,  and  it  can  only  be  divested  according 
to  law.  In  every  such  case,  where  the  land  office  afterwards  sets 
aside  this  certificate  and  grants  the  land  thus  sold  to  another 
person,  it  is  of  the  very  essence  of  judicial  authority  to  inquire 
whether  this  has  been  done  in  violation  of  law,  and,  if  it  has.  to 
give  appropriate  remedy.  And  so.  if  for  any  other  reason  recog- 
nized by  courts  of  equity,  as  a  ground  of  interference  in  such 
cases,  the  legal  title  has  passed  from  the  United  States  to  one 
party,  when,  in  equity  and  good  conscience,  and  by  the  laws 
which  Congress  has  made  on  the  subject,  it  ought  to  go  to 
another,  --a  court  of  equity  will."  in  the  language  of  this  court 
in  the  case  of  Stark  v.  Starrs,  just  cited,  -'convert  him  into  a 
trustee  of  the  true  owner,  and  compel  him  to  convey  the  legal 
title."  In  numerous  cases  this  has  been  announced  to  be  the 
settled  doctrine  of  this  court  in  reference  to  the  action  of  the 
land  officers.  {Lytle  w  Arh.in.sas.  22  Howard.  192;  Garland  \. 
Wynn,  20  Id.,  8  ;   Lindsey  v.  Haices,  2  Black.  559.) 

Not  only  has  it  lieen  found  necessary  in  the  interest  of  justice 
to  hold  this  doctrine  in  regard  to  the  decisions  of  the  land  officers 
of  the  United  States,  but  it  has  been  found  equally  necessary  in 
the  States  which  have  had  a  system  of  land  sales.  Numerous 
cases  are  found  in  the  courts  of  Kentucky  and  Virginia,  where 
they  have,  by  proceedings  in  equity,  established  the  junior  patent 
to  be  the  title  instead  of  the  elder  patent,  by  an  inquiry  into  the 
priority  of  location,  or  some  other  equitable  matter,  or  have  com- 
pelled the  holder  of  the  title  under  the  patent  to  convey,  in  whole 
or  in  part,  to  some  persons  whose  claim  rested  on  matters  whoU)' 
anterior  to  the  issuing  of  the  patent.  There  is  also  a  similar 
course   of  adjudication   in  the   State   of   Pennsylvania,  and    we 


154  Johnson  v.  Towsley. 

doubt  not  cases  ma}-  be  found  in  other  States.  Several  of  the 
Kentucky  cases  have  come  to  this  court,  where  the  principle  has 
been  uniformly  upheld.  {Fi)ih/  v.  WiUiams.  9  Cranch,  164; 
Mt Arthur  \.'BroKuJc,r.  4  Wheaton,  488;  Hunt  v.  Wickliffe,  2 
Peters.  201  ;   Green  v.  Liter,  8  Cranch,  229.) 

It  is  said,  however,  that  the  present  case  does  not  come  within 
any  of  the  adjudicated  cases  on  this  subject ;  that  in  all  of  them 
there  has  been  some  element  of  fraud  or  mistake  on  which  the 
cases  rested. 

Undoubtedly  there  has  been  in  all  of  them  some  special  ground 
for  the  exercise  of  the  equitable  jurisdiction,  for  this  court  does 
not  and  never  has  asserted  that  all  the  matters  passed  upon  by 
the  land  office  are  open  to  review  in  the  courts.  On  the  contrary, 
it  is  fully  conceded  that  when  those  officers  decide  controverted 
questions  of  fact,  in  the  absence  of  fraud,  or  impositions,  or 
mistake,  their  decision  on  those  questions  is  final,  except  as  they 
may  be  reversed  on  appeal  in  that  department.  But  we  are  not 
prepared  to  concede  that  when,  in  the  application  of  the  facts  as 
found  by  them.  they,  by  misconstruction  of  the  law,  take  from  a 
party  that  to  which  he  has  acquired  a  legal  right  under  the  sanc- 
tion of  those  laws,  the  courts  are  without  power  to  give  any 
relief.  And  this  is  precisely  what  this  court  decided  in  the  case 
of  Minnesota  v.  Batchelder  (1  AVallace,  109).  and  in  the  case  of 
Silver  v.  Ladd  (7  Id.,  219.)  In  this  latter  case,  a  certificate  under 
the  Oregon  donation  law,  given  by  the  register  and  receiver,  was 
set  aside  by  the  commissioner,  and  his  action  approved  by  the 
secretary,  and  the  action  of  each  of  these  officers  was  based  on  a 
different  construction  of  the  act  of  Congress.  This  court  held 
that  the  register  and  receiver  were  right ;  that  the  certificate  con- 
ferred a  valid  claim  to  the  land,  and  that  the  patent  issued  to 
another  party  by  reason  of  this  mistake,  must  enure  to  the  benefit 
of  the  party  who  had  the  prior  and  l)etter  right.  This  court  has 
at  all  times  been  careful  to  guard  itself  against  an  invasion  of 
the  functions  confided  by  law  to  other  departments  of  the  govern- 
ment, and  in  reference  to  the  proceedings  before  the  officers 
intrusted  withthe  charge  of  selling  the  public  lands,  it  has  fre- 
quently and  firmly  refused  to  interfere  with  them  in  the  discharge 
of  their  duties,  either  by  mandamus  or  injunction,  so  long  as  the 
title  remained  in  the  United  States,  and  the  matter  was  rightfully 
before  those  officers  for  decision.  On  the  other  hand,  it  has  con- 
stantly asserted  the  right  of  the  proper  courts  to  inquire,  after 


Johnson  v  Towsley.  155 

the  title  had  passed  from  the  government,  and  the  (piestion 
became  one  of  private  right,  whether,  according  to  the  established 
rnles  of  eqnity  and  the  acts  of  Congress  concerning  the  pnldic 
lands,  the  party  holding  that  title  slionld  hold  absolutely  as  his 
own.  or  as  trustee  for  another.  And  we  are  satisfied  that  the 
relations  thus  established  between  the  courts  and  the  land  depart- 
ment are  not  only  founded  on  a  just  view  of  the  dutiesvand  pow- 
ers of  each,  but  are  essential  to  the  ends  of  justice  and  to  a  sound 
administration  of  the  law. 

In  the  case  now  under  consideration,  tlie  complainant  made 
his  declaratory  statement  and  proved  his  settlement  to  the  satis- 
faction of  the  register  and  receiver,  and  they  gave  him  a  patent 
certificate.  The  defendant,  Johnson,  contested  the  comj^lainant's 
right  before  these  officers,  and  asserted  that  he  was  entitled  to 
the  pre-emption  right  for  the  same  land,  and  when  they  decided 
in  favor  of  Towsley.  he  appealed  to  the  commissioner.  This 
oflScer  approved  the  decision  of  the  register  and  receiver,  and  an 
appeal  was  taken  by  Johnson  to  the  Secretary  of  the  Interior, 
The  secretary,  or  rather  the  assistant  secretary,  as  appears  by 
the  record,  rejected  Towsley' s  claim  on  the  sole  ground  that  he 
had  previously  filed  a  declaratory  statement  of  his  intention  to 
claim  a  pre-emption  for  another  tract  of  land,  which  lie  had  vol- 
untarily abandoned,  and  it  is  clear  that  but  for  his  construction 
of  the  statute  on  that  subject.  Towsley  would  have  received  the 
patent  which  was  awarded  to  Johnson. 

We  must  therefore  inquire  whether  the  statute,  rightly  con- 
strued, defeated  Towsley" s  otherwise  perfect  right  to  the  patent, 
and  this  inquiry  requires  consideration  of  some  of  the  features  of 
our  system  of  land  sales. 

One  of  these  is  that  after  the  surveys  are  made  in  any  given 
locality,  so  that  the  different  tracts  can  be  identified  1)y  the  descrip- 
tions nsed  in  these  surveys,  they  are  not  subject  to  sale  by  private 
entry  at  the  land  office  until  there  has  been  a  pulilic  auction,  at 
which  the  lands  so  surveyed  are  offered  to  the  highest  l)idder.  The 
time  and  place  of  this  sale  and  the  lands  offered  for  sale  are  made 
known  by  a  proclamation  of  the  President.  The  object  of  this 
public  sale  and  of  withholding  the  lands  from  private  entry  is 
undoubtedly  to  secure  to  the  government  the  benefit  of  competi- 
tion in  bidding  for  these  parcels  of  land  supposed  to  be  worth 
more  than  the  price  fixed  by  Congress,  at  which  they  may  after- 
ward be  sold  at  private  entry.     But  as  the  tide  of  emigration  was 


156  Johnson  o.  Towsley. 

greatly  in  advance  of  these  public  sales,  and  indeed  ol"  tlie  surveys, 
it  was  found  that  settlers  who  had  made  meritorious  improvements 
were  unable  to  secure  the  land  on  which  they  had  settled  without 
bidding;  at  public  auction  against  parties  who  took  into  considera- 
tion the  value  of  the  improvements  so  made,  and  who  would  get 
them  by  the  purchase.  To  remedy  this  evil  several  of  the  earlier 
pre-emption  laws  were  passed,  and  they  only  included  settlements 
made  prior  to  the  passage  of  those  laws.  The  act  of  1H41.  how- 
ever, provided  a  general  system  of  pre-emption,  and  authorized 
pre-emption  of  lands  surveyed,  but  not  o^^en  to  private  entry,  as 
well  as  land  which  could  be  bought  at  private  sale.  It  protected 
settlements  already  made,  and  allowed  future  settlements  to  be 
made  with  a  right  to  pre-emption,  which  was  a  new  feature  in  the 
pre-emption  system.  As,  however,  these  settlements  might  now 
be  made  on  lands  subject  to  private  sale,  and  the  settler  was 
allowed  a  year  in  which  to  make  his  entry  and  pay  the  money,  the 
15th  section  of  the  act  requii-ed  the  settler  on  such  lands  to  make 
a  declaratory  statement  if  he  intended  to  claim  a  right  of  pre- 
emption, in  which  he  should  declare  such  intention  and  describe 
the  land.  This  statement  was  filed  with  the  register  and  receiver, 
and  was  obviously  intended  to  enable  them  to  reserve  the  tract 
from  sale  for  the  time  allowed  the  settler  to  perfect  his  entry  and 
pay  for  the  land.  But  an  experience  of  two  years  seems  to  have 
shown  that  this  privilege  of  withdrawing  particular  tracts  from 
private  sale  was  subject  to  abuse  by  persons  wlio  filed  declarations 
for  several  tracts  when  they  could  only  receive  one  as  a  pre-emptor, 
thus  delaying  the  sales  and  preventing  others  from  settling  on  or 
buying,  with  a  view  to  a  purchase  b}^  themselves  or  friends  when 
it  became  convenient  to  do  so.  To  remedy  this  evil  Congress, 
when  it  came  to  legislate  again  about  the  right  of  pre-emption, 
by  the  act  of  1843,  enacted  by  the  4th  section  "that  where  an  indi- 
vidual had  filed,  under  the  late  pre-emption  law,  his  declaration 
of  intention  to  claim  the  benefit  of  said  law  for  one  tract  of  land, 
it  shall  not  be  lawful  for  the  same  individual,  at  any  future  time, 
to  file  a  second  declaration  for  another  tract."  As  the  only  declara- 
tion of  intention  required  by  the  act  of  1841  (which  is  undoubtedly 
the  one  referred  to  as  "the  late  pre-emption  law")  was,  both  by 
its  express  terms  and  by  the  policy  which  dictated  it,  confined  to 
])re-emi)tions  of  land  subject  to  private  entry,  we  entertain  no 
doubt  that  this  section  was  limited,  in  like  manner,  to  that  class 
of  lands.     As  to  lands  not  subject  to  private  sale  no  declaration 


Johnson  v.  Towsley.  157 

of  intention  was  reqnirecl  by  the  act  of  1841,  and  the  reference 
to  snch  a  declaration  in  the  act  of  1843  would  be  without  anything 
on  which  to  base  it.  This  view  is  made  still  clearer  b}^  the  fact 
that  the  next  succeeding  section  of  the  act  of  1843  does  introduce 
distinctly,  as  a  new  and  separate  provision,  the  requirement  that 
settlers  on  the  land  not  yet  proclaimed  for  sale  are  required  to 
make  a  similar  declaration,  tvithin  three  monfliH  from  the  time  of 
seitlevient,  on  pain  of  forfeiting  their  pre-emption  right  in  favor 
of  the  next  actual  settler,  but  making  no  provision  whatever  for 
the  case  of  two  declarations  by  the  same  pai'ty  on  different  tracts 
of  land.  We  are,  therefore,  of  opinion  that  the  effect  of  a  double 
declaration  in  defeating  the  right  of  the  pre-emptor  to  the  tract 
which  he  finally  claims  to  purchase  is  limited  to  lands  subject,  at 
the  time,  to  private  sale.  The  land  in  controversy  in  this  suit 
was  never  subject  to  private  entry,  and  the  application  of  the 
princi))le  by  the  secretary  to  Towsley" s  case  was,  as  we  think,  a 
misconstruction  of  the  law.  through  which  his  right  was  denied 
him. 

But  it  is  argued  that  if  the  pre-emption  claim  of  Towsley  was 
not  governed  by  the  4th  section  of  the  act  of  1843.  it  certainly 
was  by  the  5th  section  of  that  act,  and  as  he  did  not  file  his  decla- 
ration of  intention  within  three  months  from  the  time  of  settle- 
ment, his  claim  was  forfeited  and  gave  him  no  right. 

The  record  shows  undoubtedly  that  his  settlement  commenced 
about  eight  months  before  he  filed  his  declaration,  and  it  must 
be  conceded  that  tlie  land  was  of  that  class  which  had  not  been 
proclaimed  for  sale,  and  his  case  must  be  governed  by  the  pro- 
vision of  that  section.  It  declares  that  where  the  party  fails  to 
make  the  declaration  within  the  three  months  his  claim  is  to  be 
forfeited  and  the  tract  awarded  to  the  next  settler  in  order  of 
time  on  the  same  tract,  who  shall  have  given  such  notice  and 
otherwise  complied  witli  the  conditions  of  the  law.  The  words 
'•  shall  have  given  such  notice."  presuppose  a  case  where  some 
one  has  given  such  notice  before  the  part}' who  has  tlius  neglected 
seeks  to  assert  his  right.  If  no  other  party  has  made  a  settle- 
ment or  has  given  notice  of  such  intention,  then  no  one  has  been 
injured  by  the  delay  beyond  three  months,  and  if  at  any  time 
after  the  three  months,  while  the  party  is  still  in  possession,  he 
makes  his  declaration,  and  this  is  done  before  any  one  else  has 
initiated  a  right  of  pre-emption  by  settlement  or  declaration,  we 
can  see  no  purpose  in  forbidding  him  to  make  his  declaration  or 


158  Samson  v.  Smiley. 

in  nuiking  it  void  when  made.  And  we  tliink  that  Congress 
intended  to  provide  for  tlie  protoctif)n  of  the  first  settler  by  giving 
him  three  months  to  make  Ins  declaration,  and  for  all  other  set- 
tlers by  saying  if  this  is  not  done  within  three  months  any  one 
else  who  has  settled  on  it  within  that  time,  or  at  any  time  before 
the  first  settler  makes  his  declaration,  shall  have  the  better  right. 
As  Towsley's  settlement  and  possession  were  continuous,  and  as 
his  declaration  was  made  before  Johnson  or  any  one  else  asserted 
claim  to  the  land  or  made  a  settlement,  we  think  his  right  was 
not  barred  l>y  that  section,  under  a  sound  construction  of  the 
meaning. 

We  are  of  opinion  that  the  decree  of  the  Supreme  Court  of  Ne- 
braska nuist  be  Affirmed. 

Mr.  Justice  Clifford,  dissenting  : 

I  dissent  from  the  judgment  of  the  court  in  this  case,  upon  the 
ground  that  the  case  is  controlled  by  the  act  of  Congress  which 
provides  that  the  decision  of  the  Commissioner  of  the  General 
Land  Office  shall  be  final  unless  an  appeal  is  taken  to  the  Secre- 
tary of  the  Interior.  In  my  judgment  the  decree  of  the  commis- 
sioner is  final  if  no  appeal  is  taken,  and  in  case  of  appeal  that  the 
decision  of  the  appellate  tribunal  created  by  the  act  of  C'ongress 
is  equally  final  and  conclusive,  except  in  cases  of  fraud  or  mis- 
take not  known  at  the  time  of  the  investigation  by  the  land 
department. 

Mr.  Justice  Davis  took  no  part  in  the  decision  of  this  or  the 
next  case,  being  interested  in  the  question  involved. 


Note. 

At  the  same  time  with  the  preceding  case  was  adjudged  another 
from  the  same  court  with  it,  to  wit,  the  case  of 

Samson  /'.  Smiley. 
13  Wallace,  91. 

The  case  of  JnJnison  v.  Tnwslej/,  Held  applicable,  although  no  patent 
certificate  was  issued  to  the  claimant  who  showed  the  l>etter  right 
of  pre-emption  ;  the  general  principle  being  laid  down  that  when  a 
party  is  deprived  of  his  riglit  of  pre-emption  otherwise  perfect,  by  a 
mistalven  construction  of  the  act  of  Congress  by  the  laud  depart- 
ment, equity  will  relieve. 


Shepley  v.  Cowan.  159 

In  this  case  the  controversy  had  been  between  one  Samson  and 
a  certain  Smiley,  and  the  register  and  receiver  had  decided  in 
favor  of  Smiley.  Samson  accordingly  brought  the  case  here. 
The  ease  differed,  as  this  court  considered,  in  no  respect  from 
the  case  just  decided,  but  (me,  whicli  was  that  when  the  register 
and  receiver  decided  in  fa\'or  of  Smiley  and  against  Samson,  in 
the  contest  for  the  right  of  pre-emption  to  the  land,  they  did  not 
give  him  a  patent  certificate  as  they  did  to  Towsle3^  The  reason 
for  this  seemed  to  be  that  the  contest  between  him  and  Samson 
was  prosecuted  immediately  from  the  register  and  receivers  decis- 
ion to  the  commissioner,  and  from  the  commissioner" s  decision 
afflrming  that  of  the  register  and  receiver,  to  the.  secretary,  so 
that  there  was  no  period,  until  the  final  decision  of  the  latter, 
when  either  party  could  have  been  permitted  to  make  the  entry  ; 
but  the  record  showed  that,  on  a  full  and  thorough  investigation, 
all  the  officers  of  the  laud  department  decided  that  Smiley  had 
established  his  right  of  pre-emption,  and  the  secretary  overruled 
this  on  the  sole  ground  that  he  had  filed  a  declaratory  statement 
for  another  tract  of  land. 

After  argument  by  Mr.  TnimbvU.  for  Samson  et  ah,  plaintiffs 
in  error,  and  by  Messrs.  31.  II.  Carpenter,  J.  M.  Woohrorth,  and 
A .  J.  Poppleton,  contra,  the  judgment  of  the  court  was  delivered 
by  Mr.  Justick  Miller,  to  the  effect  that  the  land  in  question, 
having  never  been  subject  to  private  entry,  the  construction  of 
the  statute  made  by  the  secretary  was  erroneous,  and  operated  to 
deprive  Smiley  of  his  right,  otherwise  perfect,  to  the  land,  and  to 
vest  the  legal  title,  which  he  ought  to  have  received,  in  Samson. 
The  case  came,  therefore,  as  the  court  considered,  within  the 
principle  just  decided  in  Towsley  v.  Johnson,  and  the  judgment 
of  the  Supreme  Court  of  Nebraska  was  accordingly 

Affir)ned. 


Shepley  et  al.  v.  Cowman  et  al. 

October  Term,  187o.— 1  Otto.  330. 

1.  Whenever,  in  the  disposition  of  the  public  lands,  any  action  is  required 
to  be  taken  by  an  officer  of  the  land  department,  all  proceedings 
tending  to  defeat  such  action  are  impliedly  inhibited.  .Accordingly, 
where  an  act  of  Congress  of  1812  directed  a  survey  to  be  made  of 


160  Shepley  v.  Cowan. 

the  oiit-l)()iiiularv  line  of  tin- village  of  Carondelet,  in  the  State  of 
.Missouri,  so  as  to  iiicltidc  tlie  commons  claimed  by  its  inliabitants, 
and  a  survej-  made  did  not  embrace  all  the  lands  thus  chiin)ed,  the 
lauds  omitted  were  reserved  fi'om  sale  until  the  approval  of  the 
survey  by  the  land  department,  and  the  validity  of  the  claim  to  the 
omitted  lands  was  thus  determined. 
2.  Where  a  State  seeks  to  select  lands  as  a  part  of  the  grant  to  it  by  the 
eighth  section  of  the  act  of  Tongress  of  September  4,  1841,  and  a 
settler  seeks  to  acquire  a  right  of  pre-emption  to  the  same  lands,  the 
party  taking  the  tirst  initiatory  step,  if  the  same  is  followed  up  to 
patent,  acriuires  the  i^etter  riglit  to  the  premises.  I'he  patent  relates 
back  to  the  date  of  the  initiatory  act.  and  cuts  otl"  all  intervening- 
claimants. 

5.  i'he  eigiith  section  of  tiie  act  of  September  4,  1841 ,  in  authorizing  the 

State  to  make  selections  of  land,  does  not  interfere  Avith  the  opera- 
tion of  the  other  provisions  of  that  act  regulating  the  system 'of 
settlement  and  pre-emption.  The  two  modes  of  acquiring  title  to 
land  from  the  United  states  are  not  in  conflict  with  each  other. 
Both  are  to  have  full  operation,  that  one  controlling  in  a  particular 
case  under  which  the  first  initiatory  step  was  had. 

4,  Whilst,  according  to  previous  decisions  of  this  court,  no  vested  right 
in  the  public  lands  as  against  the  United  States  is  acquired  until  all 
the  prereriuisites  for  the  acquisition  of  the  title  have  been  complied 
with,  parties  may,  as  against  each  other,  acquire  a  right  to  be  pre- 
ferred in  the  purchase  or  other  acquisition  of  the  land,  when  the 
United  States  have  determined  to  sell  or  donate  the  property.  In 
all  such  cases,  the  tirst  in  time  in  the  commencement  of  proceedings 
for  the  acquisition  of  the  title,  when  the  same  are  regularly  followed 
up.  is  deemed  to  be  the  first  in  right. 

~).  Where  a  party  has  settled  upon  public  land  witli  a  view  to  acquire  a 
right  of  pre-emption,  the  land  being  open  to  settlement.^  liis  right 
thus  initiated  is  not  ])rejudiced  bj'  a  refusal  of  the  local  land  otficers 
to  receive  his  proofs  of  settlement,  upon  an  erroneous  opinion  that 
the  laud  is  reserved  from  settlement. 

6.  The  rulings  of  the  land  department  on  disputed  questions  of  fact, 

made  in  a  contested  case  as  to  tlie  settlement  and  improvements  of 
a  pre-emption  claimant,  are  not  open  to  review  by  the  courts  when 
collaterally  assailed. 

7.  The  otticers  of  the  land  department  are  specially  designated  by  law 

to  receive,  consider,  and  pass  upon  proofs  presented  with  respect  to 
settlements  upon  the  public  lands,  with  a  view  to  secure  rights  of 
pre-emption-  I'  they  err  in  the  construction  of  the  law  applicable 
to  any  case,  or  if  fraud  is  practiced  upon  them,  or  they  themselves 
are  chargeable  with  fraudulent  practices,  their  rulings  may  be 
reviewed  and  annulled  by  the  courts  when  a  controversy  arises 
between  private  parties,  founded  upon  their  decisions.  But,  for 
mere  errors  of  judgment  upon  the  weight  of  evidence  in  a  contested 


Shepley  v.  Cowan.  161 

case  before  them,  the  onl_v  remedy  is  bj^  appeal  from  one  ofHcer  to 
another  of  the  department,  and  perhaps,  under  special  circiim- 
stances,  to  the  President. 

EKKOit  to  {.lie  Supreme  Court  of  the  State  of  Missouri. 
The  facts  are  stated  in  the  opinion  of  the  court. 
Mr.  John  R.  Shcqilep  and   Mr.  F.  PhWipfi  for  the  plaintiff  in 
error. 

Mr.  Montgomery  Blair  and  Mr.  Brittoii  A.  Hill  contra. 

Mk.  Justice  Field  delivered  the  opinion  of  the  court. 

This  is  a  suit  in  equity,  brought,  according  to  the  practice 
obtaining  in  Missouri,  to  settle  the  conflicting  claims  of  the  par- 
ties, arising  from  their  respective  patents,  to  a  fractional  section 
of  land  comprising  thirty-seven  acres  and  two-fifths  of  an  acre, 
situated  in  that  State.  The  plaintiffs  assert  title  to  the  premises 
under  a  patent'  issued  to  William  M.  McPherson  by  the  governor 
of  the  State,  bearing  date  on  the  27th  of  February,  1850,  pur- 
porting to  be  for  lands  selected  under  the  eighth  section  of  the 
act  of  Congress  of  Sept.  4.  1841.  entitled  "  An  act  to  appro- 
priate the  proceeds  of  the  sales  of  the  pu])lic  lands,  and  to 
grant  pre-emption  riglits "  (5  Stat..  4.53),  and  the  defendants 
claim  title  to  tlie  premises  under  a  patent  of  the  United  States. 
bearing  date  on  the  21st  of  July,  18G6.  issued  to  the  heirs  of 
Thomas  Chartrand,  upon  an  alleged  pre-emption  riglit  acquired 
by  a  settlement  of  tlieir  ancestor. 

The  eighth  section  of  the  act  of  Sept.  4.  1841.  declared  that 
there  should  be  granted  to  each  State  specified  in  its  first  sec- 
tion— and  among  them  was  the  State  of  Missouri — five  hundred 
thousand  acres  of  land  for  purposes  of  internal  improvement, 
the  selection  of  the  land  in  the  several  States  to  be  made  witliin 
their  respective  limits,  in  sucli  manner  as  the  legislature  thereof 
should  direct,  but  in  parcels  conformably  to  sectional  divisions 
and  subdivisions  of  the  public  surveys,  and  of  not  less  than 
three  liundred  and  twenty  acres  in  each,  from  any  public  land, 
except  such  as  was  or  might  be  reserved  from  sale  by  any  law 
of  Congress  or  proclamation  of  the  President.  Several  acts 
were  passed  by  the  legislature  of  Missouri  for  the  selection  and 
disposition  of  the  land  thus  granted.  One  of  tliem.  passed  on 
the  10th  of  March,  1849  (Laws  of  Missouri  of  1840.  p.  64),  author- 
ized the  governor  of  the  State  to  dispose,  at  private  sale,  of  so 
much  of  the  land  as  then  remained  to  be  selected,  and  to  issue  to 

11 


162  Shepley  v.  Cowan. 

tlie  purchasers  certificates,  empowering  them  to  locate  the  quan- 
tity purchased  in  conformity  with  the  act  of  Congress.  The 
purchasers  were  to  inform  the  governor  of  the  lands  selected, 
and  he  was  to  notify  the  Secretary  of  the  Treasury  that  the  selec- 
tions were  made  for  the  State  ;  and,  if  approved  by  the  secretary, 
patents  were  to  issue  to  the  purchasers. 

Where  the  land  selected  in  any  instance  contained  less  than 
three  hundred  and  twenty  acres,  the  governor  was  required,  upon 
the  request  of  the  purchaser,  and  upon  payment  for  the  full 
amount,  to  relinquish  the  sm-plus  to  the  United  States.  Of  the 
certificates  thus  issued,  one  was  held  by  William  M.  McPherson, 
and  under  it  a  selection  was  made  by  him  of  the  premises  in 
controversy.  Of  this  selection  the  governor  of  the  State  informed 
tlie  Secretary  of  the  Treasurv  on  the  1.5th  of  December,  184D, 
and  requested  his  approval  of  it,  at  the  same  time  relinquishing 
to  the  United  States  the  surplus  between  the  amount  selected 
and  three  hundred  and  twenty  acres.  At  that  time  the  super- 
vision of  the  land  office  had  been  transferred  from  the  Secretary 
of  the  Treasury  to  the  Secretary  of  the  Interior,  whose  depart- 
ment was  created  in  March  of  that  year.  The  selection  of 
McPherson  was  accordingly  brought  to  the  latter  s  attention,  and 
was  approved  by  him  on  the  17th  of  Januarj^  following,  subject, 
however,  to  any  rights  which  may  have  existed  at  the  time  the 
selection  was  made  known  to  the  land  officers  b}!-  the  agents  of 
the  State.  On  the  27th  of  February  following,  a  patent  of  the 
State  of  Missouri  for  the  premises  was  issued  to  McPherson  by 
the  governor. 

Upon  the  title  thus   conferred  the  plaintiffs  repose,  and  ask 
judgment  in  their  favor.. 

In  considering  the  validity  of  this  title,  the  first  question  for 
solution  is.  whether  the  premises  were  then  open  to  selection  by  the 
State  ;  for  whether  the  eighth  section  of  the  act  of  1841  be  construed 
as  conferring  a  grant  in  proesenti,  operating  to  vest  the  title  in  the 
State  upon  the  selection  of  the  land  pursuant  to  its  directions, 
notwithstanding  the  words  of  grant  used  are  in  the  future  tense — 
in  that  respect  resembling  the  grant  of  the  State  of  North  Carolina 
to  General  Greene,  which  was  the  subject  of  consideration  by  this 
court  in  the  case  of  Rutherford  v.  Greene's  Heirs,  reported  in  the 
2d  of  Wheaton — or  whether  the  section  be  considered  as  giving 
only  the  promise  of  a  grant,  and  therefore  requiring  further 
legislation,    or    further    action   in    some    form   of    the   govern- 


Shepley  v.  Cowan.  Ifi3 

ment  to  vest  the  title  of  the  land  selected  in  the  State,  as  iield, 
or  rather  implied,  by  tlie  decision  in  the  case  of  Foley  v.  Harrison, 
reported  in  the  loth  of  Howard,  the  same  result  must  follow  if  the 
land  were  not  at  the  time  open  to  selection.  If  not  thus  open, 
the  whole  proceeding  on  the  part  of  JMcPherson  and  the  governor 
of  the  State  to  appropriate  the  land  was  ineffectual  for  any  purpose. 
That  the  land  was  not  thus  open  we  think  there  is  no  doubt.  The 
land  was  then  claimed  as  part  of  the  commons  of  Carondelet. 
The  villages  of  St.  Louis  and  Carondelet,  on  the  acquisition  of 
Louisiana  in  1803,  and  for  many  years  previously,  claimed  as 
commons  certain  lands  adjoining  their  respective  settlements. 
Those  of  St.  Louis  extended  south  of  the  village  of  that  name, 
those  of  Carondelet  to  the  north  of  its  village  ;  and  a  well  known 
line  was  generally  recognized  as  the  boundary  separating  the 
commons  of  the  two  villages.  That  line  commenced  on  the  bank 
of  the  Mississippi  at  what  is  known  as  Sugar-loaf  Mound,  about 
four  miles  south  of  the  settlement  of  St.  Louis,  and  two  miles 
north  of  that  of  Carondelet,  and  ran  westerly  to  the  common  fields 
of  Carondelet.  It  was  contended,  in  the  controversy  which  subse- 
quently arose  between  the  cities  of  St.  Louis  and  Carondelet,  that 
this  line  had  been  surveyed  and  marked  by  Soulard.  a  Spanish 
surveyor,  previous  to  1800.  ])y  order  of  the  lieutenant  governor  of 
the  upper  province  of  Louisiana.  Be  that  as  it  may.  it  is  clear 
that  from  the  acquisition  of  the  countrj^  until  June  13,  1812.  the 
land  south  of  this  line  was  claimed  and  used  by  the  inhabitants 
of  Carondelet  as  within  their  commons.  On  that  day  Congress 
passed  an  act  confirming  to  the  inhabitants  of  these  villages  their 
claims  to  their  common  lands.  (2  Stat..  748.)  The  act  was  a 
present  operative  grant  of  all  the  interest  of  the  United  States  in 
the  property  used  by  the  inhabitants  of  the  villages  as  their 
commons  ;  but  it  did  not  refer  to  the  line  mentioned,  or  designate 
any  boundar}^  of  the  commons,  but  left  that  to  be  established  by 
proof  of  previous  possession  and  use. 

The  act  at  the  same  time  made  it  the  duty  of  the  deputy  sur- 
veyor of  the  territory'  to  survey  the  out-boundary  lines  of  the 
villages  so  as  to  include  the  commons  respectively  belonging  to 
them,  and  make  out  plats  of  the  surveys,  and  transmit  them  to  the 
surveyor  general,  by  whom  copies  were  to  be  forwarded  to  the 
Commissioner  of  the  General  Land  Office  and  the  recorder  of  land 
titles.  No  survey  appears  to  have  been  made,  as  here  directed, 
of  the  out-boundary  line  of  the  village  of  Carondelet.  until  the 


]64  Shepley  ?;.  Cowan. 

year  1818;  but  its  inhabitants  claimed  under  the  act  the  owner- 
sliip  and  title  of  the  land  as  part  of  their  commons,  up  to  the 
line  mentioned  on  tlie  north,  as  the  same  had  been  claimed  and 
used  hy  them  previously.     In  1816  or  1817,  Elias  Rector,  a  depiitj^ 
surveyor,  under  instructions  from  his  superior,  made  a  survey  of 
the  commons,  running  the  u})per  line  about  a  mile  below  the  line 
alleged  to  have  been  established  by  Soulard.     Some  years  after- 
wards (in  1834),  another  deputy  surveyor,  by  the  name  of  Joseph 
C.  Brown,  was  ordered  by  the  surveyor  general  to  retrace  and 
mark  anew  the  lines  of  this  survey,  and  connect  them  with  the 
surveys  of  adjoining  public  lands  and  private  claims.     This  was 
accordingly  done  b}'  him  ;  and  it  would  seem  by  various  proceed- 
ings of  the  authorities  of  Carondelet  that  the  siirvey  thus  retraced 
was  at  one  time  acquiesced  in  by  them  as  a  determination  of  the 
boundaries  of  their  commons.     They  had  a  copy  of  it  framed  for  the 
benefit  of  the  town,  and  they  introduced  it  in  several  suits  with 
different  parties  as  evidence  of  the  extent  of  their  claim.     But  at 
another  time  the}^  denied  the  correctness  of  its  northern  line,  which 
they  insisted  should  be  coincident  with  that  alleged  to  have  been  run 
by  Soulard.     When  St.  Louis,  in  1836,  proceeded  to  subdivide  her 
commons  into  lots  down  to  the  line  of  the  survey,  they  gave  notice, 
through  a  committee,  that  the  lands  below  the  alleged  Soulard 
line    were    claimed    as   part   of  their   commons :    and,   in   1855, 
Carondelet  entered  a  suit  against  St.  Louis  for  the  possession  of 
those  lands.     In  the  meantime  the  matter  remained  undetermined 
in  the  land  department  at  Washington  until  the  23d  of  February 
of  that  j^ear.     During  this  period  the  Commissioner  of  the  General 
Land  Office  repeatedly  informed  the  local  land  officers  that  the 
tract  was  reserved  from  sale  because  it  was  claimed  as  part  of 
the  Carondelet  commons,  and  on  that  ground  their  refusal  to 
receive  poofs  of  settlement  from  parties  seeking  to  acquire  a  right 
of  pre-emption   was  ap])roved  ;  and  appropriate  entries  stating 
such  reservation  were  made  in  the  books  of  those  officers.     At 
one  time  (January',  1852)  the  Secretary  of  the  Interior  decided' to 
have  a  new  survey  of  the  commons,  and   gave  orders  to  that 
effect.     The  survej^or  general  for  Missouri  having  asked  instruc- 
tions as  to  the  manner  of  the  survey,  and  stating  that,  in  his 
opinion,  the  new  survey  should  include  the  land  in  controversy, 
'the  secretary  then  in  office,  the  successor  of  the  one  who  had 
ordered  a  new  survey,  re-examined  the  whole  subject,  and  recalled 
the  direction  for  a  new  survey  made  bj^  his  predecessor,  and  held 


Shepley  v.  Cowan,        •  165 

that  as  the  surveys  of  1816  and  1834  had  been  executed  b}^  com- 
petent authority  and  approved,  and  were  for  years  acquiesced  in 
by  the  inhabitants  of  Carondelet,  both  they  and  the  government  of 
the  United  States  were  estopped  and  concluded  by  them  ;  and  that, 
in  c(msequence.  the  survey  of  1816,  as  retraced  in  1834,  should 
be  sustained,  excluding  therefrom  a  tract  wliich  had  been  reserved 
for  a  militar}^  post.  This  was  the  final  determination  of  the 
boundaries  of  the  Carondelet  commons  by  that  department  of  the 
government  to  which  the  supervision  of  surveys  of  public  grants 
was  intrusted.  A  few  days  before  this  determination  was  an- 
nounced, the  suit  mentioned,  of  the  city  of  Carondelet  against 
the  city  of  St.  Louis,  was  commenced  to  obtain  possession  of  the 
lands  below  the  Soulard  line,  over  a  portion  of  which  the  St.  Louis 
commons  had  been  extended.  That  suit  was  finally  disposed  of 
by  the  judgment  of  this  court  in  March,  1862,  affirming  that  of  the 
Supreme  Court  of  the  State,  to  the  effect  that  both  the  govern- 
ment and  Carondelet  were  concluded  by  the  surveys  stated. 

Tlie  act  of  1812  contemplated  that  the  out-boundary  line  of  the 
village  would  be  surveyed  so  as  to  include  the  commons  claimed, 
in  accordance  with  the  possession  of  the  inhabitants  previous  to 
1803,  and  not  arbitrarily,  according  to  the  caprice  of  the  surveyor  ; 
and  any  line  run  by  him  was  subject,  like  all  other  surveys  of 
public  grants,  to  the  supervision  and  approval  of  the  land  depart- 
ment at  AVashington.  Until  surveyed,  and  the  survey  was  thus 
approved,  the  land  claimed  by  Carondelet  was,  by  force  of  the  act 
requiring  the  survey  and  the  establishment  of  the  boundaries, 
necessarily  reserved  from  sale.  It  was  thus  reserved  to  be  appro- 
priated in  satisfaction  of  the  claim,  if  that  should  be  ultimately 
sustained.  Whenever  in  the  disposition  of  the  public  lands  any 
action  is  required  to  be  taken  by  an  officer  of  the  land  depart- 
ment, all  proceedings  tending  to  defeat  such  action  are  impliedly 
inhibited.  Tlie  allowance  of  selections  by  the  States  or  of  pre- 
emptions by  individuals  of  lands  which  might  be  included  within 
grants  to  others  might  interfere,  and  in  many  instances  would 
interfere,  with  the  accomplishment  of  the  purposes  of  the  govern- 
ment. A  sale  is  as  much  prohibited  by  a  law  of  Congress,  when 
to  allow  it  would  defeat  the  object  of  that  law,  as  though  the  inhibi- 
tion were  in  direct  terms  declared.  The  general  rule  of  the  land 
department  is.  and  from  the  commencement  of  the  government 
has  been,  to  liold  as  excluded  from  sale  or  pre-emption  lands  which 
miglit.  in  the  execution  of  the  laws  of  Congress,  fall  witliin  grants 


166  Shepley  v.  Cowan. 

to  others  ;  and  therefore,  in  this  case,  until  it  was  decided  by  the 
final  determination  of  the  Secretary  of  the  Interior  or  of  the 
Supreme  Court  of  the  United  States  whether  the  northern  line  of 
the  commons  was  that  run,  as  alleged,  by  Soulard  previous  to 
1800,  or  that  retraced  by  Brown  in  1834.  tlie  land  between  those 
lines,  embracing  the  premises  in  controversy,  was  legally  reserved 
from  sale,  and  consequently  from  any  selection  by  the  State  as 
part  of  its  five  hundred  thousand  acres  granted  by  the  act  of  Sept. 
4,  1841. 

But  there  is  another  view  of  this  case  which  is  equally  fatal  to 
the  claim  of  the  plaintiffs.  If  the  land  outside  of  the  survey  as 
retraced  by  Brown  in  1834  could  be  deemed  public  land,  open  to 
selection  by  the  State  of  Missouri  from  the  time  the  survey  was 
returned  to  the  land  office  in  St.  Louis,  it  was  equally  open  from 
that  date  to  settlement,  and  consequent  pre-emption  by  settlers. 
The  same  limitation  which  was  imposed  by  law  upon  settlement  was 
imposed  by  law  upon  the  selection  of  the  State.  In  either  case 
the  land  must  have  been  surveyed,  and  thus  offered  for  sale  or 
settlement.  The  party  who  takes  the  initiatory  step  in  such  cases, 
if  followed  up  to  patent,  is  deemed  to  have  acquired  the  better 
right  as  against  others  to  the  premises.  The  patent  which  is  after- 
wards issued  relates  back  to  the  date  of  the  initiatory  act,  and 
cuts  off  all  intervening  claimants.  Thus  the  patent  upon  a  State 
selection  takes  effect  as  of  the  time  when  the  selection  is  made 
and  reported  to  the  land  office,  and  the  patent  upon  a  pre-emption 
settlement  takes  effect  from  the  time  of  the  settlement  as  dis- 
closed in  the  declaratory  statement  or  proofs  of  the  settler  to  the 
register  of  the  local  land  office.  The  action  of  the  State  and  of 
the  settler  must,  of  course,  in  some  way  be  brought  offlciallj^  to 
the  notice  of  the  officers  of  the  government  having  in  their  custody 
the  records  and  other  evidences  of  title  to  the  property  of  the 
United  States  before  their  respective  claims  to  priority  of  right 
can  be  recognized.  But  it  Avas  not  intended  by  the  eighth  section 
of  the  act  of  1841,  in  authorizing  the  State  to  make  selections  of 
land,  to  interfere  with  the  operations  of  the  other  provisions  of 
that  act  regulating  the  system  of  settlement  and  pre-emption. 
The  two  modes  of  acquiring  title  to  land  from  the  United  States 
were  not  in  c^^nflict  with  each  other.  Both  were  to  have-full  opera- 
tion, that  one  controlling  in  a  particular  case  under  which  the  first 
initiatory  step  was  liad. 

Nor  is  there  anvtliinu;  in  this  view  in  conflict  with  the  doctrines 


Shepley  v.  Cowan.  167 

announced  in  Frisbie  v.  Whitney,  9  Wall.,  187,  and  the  Yosemite 
Valley  Case,  15  /(/.,  77.  In  those  cases  the  court  onl}-  decided 
that  a  party,  by  mere  settlement  uj)on  the  public  lands,  with  the 
intention  to  obtain  a  title  to  the  same  under  the  pre-emption  laws, 
did  not  thereby  acquire  such  a  vested  interest  in  the  premises  as 
to  deprive  Congress  of  the  power  to  dispose  of  the  property  ;  that, 
notwithstandino-  the  settlement.  Congress  could  reserve  the  lands 
from  sale  whenever  tliey  might  be  needed  for  public  uses,  as  for 
arsenals,  fortifications,  light-houses,  hospitals,  custom-houses, 
court-houses,  or  other  public  purposes  for  which  real  property  is 
required  b}-  the  government ;  that  the  settlement,  even  when 
accompanied  with  an  improvement  of  the  property,  did  not  confer 
xipon  the  settler  any  right  in  the  land  as  against  the  United  States, 
or  impair  in  any  respect  the  power  of  Congress  to  dispose  of  the 
land  in  any  wrv  it  might  deem  proper ;  that  the  power  of  regula- 
tion and  disposition  conferred  upon  Congress  by  the  Constitution 
only  ceased  when  all  the  preliminary  acts  prescri})ed  bylaw  for  the 
acquisition  of  the  title,  including  the  payment  of  the  price  of  the 
land,  had  been  performed  by  the  settler.  When  these  prerequisites 
were  complied  with  the  settler  for  the  first  time  acquired  a  vested 
interest  in  the  premises,  of  which  he  could  not  be  subsequently 
deprived.  lie  was  then  entitled  to  a  certificate  of  entry  from  the 
local  land  officers,  aud  ultimately  to  a  patent  of  the  United  States. 
Until  such  payment  and  entry  the  acts  of  Congress  gave  to  the 
settler  only  a  privilege  of  pre-emption  in  case  the  lands  were 
oflFered  for  sale  in  the  usual  manner — tliat  is.  the  privilege  to 
purchase  them  in  that  event  in  preference  to  others. 

But  whilst,  according  to  these  decisions,  no  vested  right  as 
against  the  United  States  is  acquired  until  all  the  prerequisites 
for  the  acquisition  of  the  title  have  heen  complied  with,  parties 
may,  as  against  each  other,  acquire  a  right  to  be  preferred  in  the 
purchase  or  other  acquisition  of  the  land,  when  the  United  States 
have  determined  to  sell  or  donate  the  property'.  In  all  such 
cases,  the  first  in  time  in  the  commencement  of  proceedings  for 
the  acquisition  of  the  title,  when  the  same  are  regularly  followed 
up.  is  deemed  to  be  the  first  in  right.  So  in  this  case.  Chartraud. 
the  ancestor,  by  his  previous  settlement  in  1835-  upon  the  prem- 
ises in  controversy,  and  residence  with  his  family,  and  ai)])lica- 
tion  to  prove  his  settlement  and  enter  the  land,  obtained  a  better 
riglit  to  the  premises,  under  the  law  then  existing,  tlian  that 
acquired  by  McPherson  by  his  subsequent  State  selection  in  184i>. 


168  Shepley  v.  Cowan. 

His  right  tlius  initiated  could  not  be  prejudiced  by  the  refusal  of 
the  local  otlicers  to  receive  his  proofs  upon  the  declaration  that 
the  land  was  then  reserved,  if,  in  point  of  fact,  the  reservation 
had  then  ceased.  The  reservation  was  asserted,  as  already  men- 
tioned, on  the  irround  that  the  land  was  then  claimed  as  a  part  of 
the  commons  of  Carondolet.  So  soon  as  the  claim  was  held  to 
be  invalid  to  this  extent  by  the  decision  of  this  court,  in  March, 
1862,  the  heirs  of  Chartrand  presented  anew  their  claim  to  pre- 
emption founded  upon  the  settlement  of  their  ancestor.  The  act 
of  Congress  of  March  3,  1853  (10  Stat.,  244),  provided  that  any 
settler  who  had  settled  or  might  thereafter  settle  on  lands  pre- 
viously reserved  on  account  of  claims  under  French,  Spanish,  or 
other  grants,  which  had  been  or  should  thereafter  be  declared 
invalid  bj'  the  Supreme  Court  of  the  United  States,  should  be 
entitled  to  all  the  rights  of  pre-emption  granted  by  the  act  of 
Sept.  4.  1841,  after  the  lands  were  i-eleased  from  reservation,  in 
the  same  manner  as  if  no  reservation  had  existed.  With  the 
decision  declaring  the  invalidity  of  the  claim  to  the  land  in  con- 
troversy, all  obstacles  previously  interposed  to  the  presentation 
of  the  claim  of  the  heirs  of  Chartrand,  and  the  proofs  to  estab- 
lish it^  were  removed.  According  to  the  decisions  in  Frisbie  v. 
Whit)iejj.  and  the  Yosemite  Valley  Case,  Congress  might  then 
have  withdrawn  the  land  from  settlement  and  pre-emption,  and 
granted  it  directly  to  the  State  of  Missouri,  or  reserved  it  from 
sale  for  public  purposes,  and  no  vested  right  in  Chartrand  or  his 
heirs  as  against  the  United  States  would  have  been  invaded  by 
its  action  ;  but,  having  allowed  b}^  its  subsisting  legislation  the 
acquisition  of  a  right  of  preference  as  against  others  to  the 
earliest  settler  or  his  heirs,  the  way  was  free  to  the  prosecution  of 
the  claim  of  the  heirs. 

If  the  matter  were  open  for  our  consideration,  we  might  per- 
haps doubt  as  to  the  sufficiency  of  the  proofs  presented  by  the 
heirs  of  Chartrand  to  the  officers  of  the  land  department  to 
establish  a  right  of  pre-emption  b}'  virtue  of  the  settlement  and 
proceedings  of  their  ancestor,  or  by  virtue  of  tlieir  own  settle- 
ment. Those  proofs  were,  however,  considered  sufficient  by  the 
register  of  the  local  land  office,  by  the  Commissioner  of  the  Gen- 
eral Land  Office  on  appeal  from  the  register,  and  by  the.  Secretary 
of  the  Interior  on  appeal  from  the  commissioner.  There  is  no 
evidence  of  any  fraud  or  imposition  practiced  upon  them,  or  that 
they  erred  in  the  construction  of  any  law  applicable  to  the  case 


Shepley  v.  Cowan,  169 

It  is  only  contended  that  they  erred  in  their  deductions  from  the 
proofs  presented ;  and  for  errors  of  that  kind,  where  the  parties 
interested  had  notice  of  the  proceedings  before  the  land  depart- 
ment, and  were  permitted  to  contest  the  same,  as  in  tlie  present 
cese.  the  courts  can  furnisli  no  remedy.  The  officers  of  the  land 
department  are  speciallj^  designated  by  law  to  receive,  consider, 
and  pass  upon  proofs  presented  with  respect  to  settlements  upon 
the  public  land  with  a  view  to  secure  rights  of  pre-emption.  If 
they  err  in  the  construction  of  the  law  applicable  to  any 
case,  or  if  fraud  is  practiced  upon  them,  or  they  themselves  are 
chargeable  with  fraudulent  practices,  their  rulings  may  be 
reviewed  and  annulled  by  the  courts  when  a  controversy'  arises 
between  private  parties  founded  upon  their  decisions  :  but,  for 
mere  errors  of  judgment  upon  the  weight  of  evidence  in  a  con- 
tested case  before  them,  the  only  remedy  is  by  appeal  from  one 
officer  to  another  of  the  department,  and  perhaps,  under  special 
circumstances,  to  the  President.  It  may  also  be  and  probably  is 
true  that  the  courts  may  furnish,  in  proper  cases,  relief  to  a  party 
where  new  evidence  is  discovered,  which,  if  possessed  and  pre- 
sented at  time,  would  have  changed  the  action  of  the  land  officers  : 
but,  except  in  such  cases,  the  ruling  of  the  department  on  dis- 
puted questions  of  fact  made  in  a  contested  case,  must  be 
taken,  when  that  ruling  is  collaterally  assailed,  as  conclusive. 

In  this  case,  therefore,  we  cannot  inquire  into  the  correctness 
of  the  ruling  of  the  land  department  upon  the  evidence  presented 
of  the  settlement  of  Chartrand.  the  ancestor,  or  of  his  heirs.  It 
follows  that  the  patent  issued  by  the,  United  States,  taking  effect 
as  of  the  date  of  such  settlement,  overrides  the  patent  of  the 
State  of  Missouri  to  McPherson,  even  admitting  that,  but  for  the 
settlement,  the  land  would  have  lieen  open  to  selection  by  the 
State.  Decree  affirmed. 


XoTE. — In  making  an  entry  or  other  appropriation  of  public  laud, 
the  statute  under  which  the  appropriation  is  made  should  be  followed. 
In  the  case  of  Wilson  v.  Mason,  1  Crauch,  97,  Mr.  Chief  Justice  Marshall, 
in  delivering  the  opinion  of  the  court,  said  :  •"The  mode  of  appropria- 
tion, then,  which  the  law  designates,  has  not  been  pursued  ;  but  it  is  con- 
tended that  another  course  has  been  adopted,  which  equally  produces 
all  the  objects  designed  to  be  eftected  by  the  location  in  the  book  of 
entries,  and  which,  therefore,  ought  to  be  received  as  a  sufficient  sul)sti- 
tute  for  an  entry. 

"  The  legislature  of  Virginia,  when  bringing  lier  lands  into  the  market. 


170  Shepley  I'.  Cowan. 

liad  uiuloubtcdly  a  ri_<?ht  to  prescribe  tlie  terms  on  which  she  woiihl  sell, 
and  tlio  mode  to  be  pni'sued  by  pnrchasers,  for  the  purpose  of  particu- 
larizino"  the  general  title  acquired  by  obtaining  a  land  warrant.  The 
court  is  by  no  means  satisfied  by  its  power  to  substitute  any  equivalent 
act  for  that  required  by  the  law." 

In  tlie  sale  of  State  land,  if  the  application  to  enter  is  not  in  Avriting, 
as  required  by  the  statute,  the  sale  is  illegal  and  maj'  be  canceled.  State 
\.  Joiissen^   2  Wis.,  42."}. 

i'he  rule  is  well  establislied,  that  an  application  to  enter  State  land 
must  confoi  m  to  the  statute,  or  it  will  not  be  regarded  as  valid.  Wood 
V.  .Siiuitellfe,  4t)  Cal.,  389.  The  legislature  thought  proper  to  require 
certain  facts' to  be  stated  in  the  ajjplicant's  affidavit,  and  it  is  not  for 
the  courts  to  determine  that  the  facts  were  not  material  to  be  stated  in 
the  affidavit,  but  might  be  stated  in  some  other  manner.  Hildebrand  v. 
Stewnrt.  41  C'al.,  387. 

If  a  pre-emption  right  is  rejected  by  the  register  and  receiver,  the 
remedy  is  by  appeal  to  the  commissioner,  and  not  to  the  courts,  until  the 
modes  of  relief  provided  by  law  ai"e  exhausted.  Sacramtnto  Savings 
Bfiiikv.  Hdi/nes,  .iO  Cal..  liJ.'J. 

While  the  claims  of  settlers  are  pending  before  the  land  department, 
their  i-ights  cannot  be  litigated  in  the  courts.  Morancy  v.  Ford^  2  Ija. 
Ann.,  299  ;    Courtney  v.  Perkins^  5  La.  Ann..  21 G. 

After  claim  and  offer  to  purchase,  which  is  followed  with  appeal,  or 
other  proper  proceedings,  no  other  entry  of  the  land  can  be  made  until 
a  final  decision  is  given  on  the  first  application.  Dolheqvy  v.  'Tabor.  11 
Cal.,  274;  Millander  \.  Lalaudf..  9  La.  Ann.,  438. 

Where  a  pre-emption  entry  has  been  obtained  by  fraud,  the  commis- 
sioner may,  upon  the  discovery  of  such  fraud,  order  a  rehearing  by  the 
register  and  receiver,  although  the  proof,  when  made,  was  satisfactory, 
and  the  money  had  been  paid,  and  a  certificate  of  entry  given.  If,  upon 
such  rehearing,  after  notice  being  given  to  the  pre-emptor,  the  claim  is 
found  to  be  fraudulent,  the  commissioner  may  cancel  the  entry.  Hill  v. 
Miller,  36  Mo.,  182. 

A  rehearing  without  notice  to  tlie  pre-emjitor,  is  void,  so  far  as  it 
affects  his  riglits.     Danforth  v.  Morrical,  84  111.,  4ot). 

Decisions  made  by  tlie  land  officers  upon  questions  of  fact  in  the  dispo- 
sition of  the  public  land,  where  all  parties  in  interest  have  had  notice, 
and  a  fair  and  impartial  hearing  has  been  had,  will  not  be  reviewed  by 
the  courts  Ho.smtr  y.  }Vallace,  47  Cal.,  461  ;  (iray  v.  McCunce,  14  111.. 
343;  McGehecx.  Wriyhl.  16  111.,  .5.5-5  ;  lliithilqt  v.  Aliirphy,  .51  Cal.,  388; 
■MUcnell  v.  Cobb,  13  Ala.,  137;  Heiir./  v.  Welili,  4  La.,  .547;  Frimot  v. 
Phibodeaiix,  6  La'.,  10;  Kerbyy.  Foglanaii,  16  La.,  277  ;  J.ewis  v-  Lewis,  9 
Mo..  183. 

Where  the  question  of  citizenship  of  a  pre-emptor  wa?  contested  before 
the  land  officers,  the  courts  will  not  review  tiieir  finding,  although  the 
jury  find  distinctly  that  the  pre-emptor  was  not  a  citi/en.  Burrelly.  Haw, 
48  Cal.,  222. 


Garland  v.  Wynn.  171 

As  to  wiiether  certain  land  had  been  g-rantcd  to  tlic  State,  was  held  to 
be  a  question  of  fact,  and  not  subject  to  be  reviewed  by  the  courts. 
Bes/nsY.  Brennan.  "lO  Cal.,  211. 

'Ihe  courts  will  re-examine  the  facts  in  the  case,  where  fraud  has  l)een 
practiced  on  tlie  land  officers,  either  in  procuring  an  entry  Lamoid  v. 
Sfimsoii,  :i  Wis.,  545) ;  or  in  procuring  the  cancelation  of  an  entry  ( Wig- 
gins V.  (hiier,  13  La,,  Ann.,  356  ;  Knox  v.  PtiUimn,  14  La.  Ann.,  123.  But 
the  party  complaining  will  be  required  to  make  out  a  clear  case  of  fraud. 
Briic/crii  V.  Furken.son,  1  JPinn  (Wis),  085  ;  Lamont  v.  Stimson,  3  Wis.,  545. 

The  courts  will  review  the  action  of  the  land  officers,  m  refusing  to 
allow  an  entry,  on  the  ground  that  tlie  land  had  been  previously  entered, 
i\7tA-.s-  V.  Rector.  4  Ark.,  251  ;  or  tliat  the  land  did  not  belong  to  the 
United  States,  Copley  v.  Dinkgrave,  25  La.  Ann.,  ^TT ;  or  was  not  subject 
to  pre-emption  entry,  Gnidri/  v.  Woods.  19  La.,  334. 

When  the  applicant  has  taken  the  steps  required  of  him  by  law,  to 
acquire  the  title  to  public  land,  his  duties  are  at  an  end,  and  his  right  to 
the  land  cannot  be  defeated  by  a  subsequent  neglect  of  an  officer  of  the 
land  department  to  make  a  return  of  the  survey  {Taylor  \.  Brown,  5 
Cranch,  234  ;)  or  a  neglect  to  note  the  entry  on  the  books  of  tlie  land 
office,  Kiliridgc  v  Brciii,<l,  4  Eob.,  (La.),  7^1;  Hester  v.  Eenbrough,  12 
Smedes  and  M.  (Mi^s.)  659;  Nelson  v.  t>ims.  23  Miss.,  383;  or  by  reason 
of  an  error  of  the  officer  in  making  out  his  entry  papers  for  difterent  land 
than  that  applied  for,  Climerx.  Sdby,  10  La.  Ann.,  182;  or  by  the  land 
officers  making  the  entry  papers  in  the  name  of  anotlier,  Stejthenson  v. 
S7nif/i,  7  Mo..  610;  also  see  Kiwx  v.  Pallium,  14  La.  Ann.,  123. 

Where  a  certificate  has  not  been  located  witliin  the  time  required  by 
law,  by  reason  of  the  neglect  of  the  laud  officers,  it  may  be  located  after    /^ 
the  time  has  expired.     Gibson  v.  Chontemi,  39  Mo..  536. 

A  pre-emptor  should  not  be  allowed  to  enter  land,  not  included  in  his 
pre-emption  tiling,  to  the  injury  of  another  settler.  Hess  v.  Bollinger, 
48  Cal.,  349. 

An  entry  may  be  valid  as  to  part  of  the  land,  and  void  as  to  tlie  other 
part,     hanfort'h  \.   Wear,  9  Wheaton,  073  ;  Forbes  v.  Hall,  34  ill.,  159. 


JosiAii  Garlakd,  Plaintiff  in  Error,  v.  Robeut  II.  Wyxn,  Exec- 
utor.   &iC. 

December  Term,  1857.— 20  Howard,  6;  2  Miller,  243. 

Condnsioeness  of  I'aients  to  Lands— Fraud  in  Obtaining  Patent— Equitable 
Jurisdiition  as  between   Conjliding   Claimants. 

It  is  the  settled  doctrine  of  tliis  court  that,  wliere  a  person  obtains  a 
patent  for  lands  by  fraudulent  imposition  on  the  officers  of  the  land 
department,  equity  will  give  relief  to  the  party  legally  entitled  to 
receive  the  patent.  J.ijk  v.  Arkansas,  9  Howard.  328;  Bernard  v. 
Ashley,  18  Howard.  44;  Johnson  v.  Totcsley,  13  Wall..  72. 


172  Garland  v.  Wynn. 

Writ  of  Eukok  to  the  Supreme  Court  of  the  State  of  Arkansas, 

The  case  is  sufficiently  stated  iu  the  opinion. 

Mi\   Wtifkiiis  and  Mr.  Bradh^y  for  plaintiff  in  error. 

Mr.  Pike;  for  defendant. 

Mr.  Justice  Catrox  delivered  the  opinion  of  the  court. 

In  November,  1842,  William  Wynn  (the  complainant  below) 
proved  that  he  had  a  preference  of  entry  to  the  quarter-section  of 
land  in  dispute,  according  to  the  act  of  1838,  and  his  entry  was 
allowed. 

In  February,  1843,  Samuel  Hemphill  made  proof  that  he  had 
a  right  of  pre-emption  to  the  same  land,  under  the  act  of  May 
26th,  1830.  The  two  claims  coming  in  conflict,  it  was  decided  by 
the  register  and  receiver  at  the  local  land  office,  that  Hemphill 
had  the  earlier  and  better  right  to  enter  the  land  ;  and  in  this 
decision  the  Commissioner  of  the  General  Land  Office  concurred. 

Wynn's  entry  being  the  oldest,  it  was  set  aside,  his  purchase- 
money  refunded,  and  a  patent  certificate  was  awarded  to  Samuel 
Hemphill,  who  assigned  it  to  Garland,  the  plaintiff  in  error,  to 
whom  the  patent  issued.  The  benefit  of  the  patent  was  decreed 
to  Wjnin  by  the  Supreme  Court  of  Arkansas  ;  to  reverse  which 
decree,  Garland  prosecutes  his  writ  of  error  out  of  this  court. 

It  appears,  from  the  allegations  and  evidence,  that  Garland 
procured  the  proofs,  and  was  in  fact  the  principal  in  obtaining  a 
preference  of  entry  in  the  name  of  Hemphill,  and  in  causing 
Wynn's  elder  entry  to  be  vacated  ;  that  the  whole  proceeding  on 
the  part  of  Garland  and  Hemphill,  was  a  mere  imposition  on  the 
officers  administering  the  public  lands  ;  that  Hemphill  never  had 
any  improvement  on  the  northeast  quarter  of  section  18.  but  that 
his  improvement  was  on  the  northwest  quarter  of  section  17,  which 
adjoins  the  quarter-section  in  controversy ;  and  that  Garland 
induced  the  witnesses,  who  made  the  proof  before  the  register  and 
receiver  to  establish  Hemphill's  preference  of  entry,  to  confound 
the  quarter-sections  and  their  dividing  lines,  and  misrepresented 
the  extent  of  the  cleared  land  occupied  by  Hemphill  in  1829  and 
1830,  so  that  the  witnesses  ignorantly  swore  that  the  improve- 
ment and  cultivation  were  in  part  on  the  northeast  quarter  of  sec- 
tion 18,  which  was  wholly  untrue  ;  and  by  which  false  swearing 
Wynn's  entry  was  set  aside,  and  Garland  obtained  a  patent  of 
the  land. 

Garland   insists,  by  an  amended  answer,  in  tlie   nature  of  a 


Garland  v.  Wynn,  173 

distinct  plea,  that,  by  the  law  of  the  land,  the  circuit  court  had 
no  authority  or  jurisdiction  to  set  aside  or  correct  the  decision  of 
the  register  and  receiver ;  and  that  their  adjudication  and  judg- 
ment in  granting  and  allowing  the  pre-emption  rights  to  and  in 
the  name  of  Samuel  Hemphill  was  final  and  conclusive,  and  can- 
not be  inquired  into,  or  in  any  manner  questioned,  modified,  or 
set  aside. 

This  matter  was  put  in  issue  ;  and  the  court  below,  when  it 
decreed  for  the  complainant,  necessarily  decided  against  the  bar 
to  relief  set  up  and  claimed  under  an  authority  of  the  United 
States. 

The  question  is,  have  the  courts  of  justice  power  to  examine  a 
contested  claim  to  a  right  of  entry  under  the  pre-emption  laws, 
and  to  overrule  the  decision  of  the  register  and  receiver,  confirmed 
by  the  commissioner,  in  a  case  where  they  have  been  imposed 
upon  by  ex  parte  aflSdavits,  and  the  patent  has  been  obtained 
by  one  having  no  interest  secured  to  him  in  virtue  of  the  pre- 
emption laws,  to  the  destruction  of  another's  right,  who  had  a 
preference  of  entry,  which  he  preferred  and  exerted  in  due  form, 
but  which  fright  was  defeated  by  false  swearing  and  fraudulent 
contrivance  brought  about  by  him  to  whom  the  patent  was  awarded? 
The  general  rule  is.  that  where  several  parties  set  up  conflicting 
claims  to  property,  with  which  a  special  tribunal  may  deal,  as 
between  one  party  and  the  government,  regardless  of  the  rights 
of  others,  the  latter  may  come  in  into  the  ordinary  courts  of  jus- 
tice, and  litigate  the  conflicting  claims.  Such  was  the  case  of 
Comegps  v.  Vassey,  (1  Peters,  212).  and  the  case  before  us  belongs 
to  the  same  class  of  ex  parte  proceedings  ;  nor  do  the  regulations 
of  the  Commissioner  of  the  General  Land  Office,  whereby  a  party 
may  be  heard  to  prove  his  better  claim  to  enter,  oust  the  jurisdic- 
tion of  the  courts  of  justice.  We  announce  this  to  be  the  settled 
doctrine  of  this  court. 

It  was,  in  effect,  so  held  in  the  case  of  Lytle  v.  The  State  of 
Arkansas,  (9  How..  328) ;  next,  in  the  case  of  Cunningham  v. 
Ashley.  (14  How.) :  and  again  in  the  case  of  Bernard  v.  Ashley, 
(18  How.,  44.) 

It  is  ordered  that  the  decree  of  the  Supreme  Court  of  Arkansas 
be  in  all  things  affirmed. 


174  Hughes  v.  United  States. 

Hughes  v.  United  States. 
December  Term,  1866.— 4  Wallace,  282. 

1 .  The  ecinity  of  a  pre-emption  claimant  of  land  under  the  laws  of  the 

United  States,  who  has  complied  with  the  conditions  imposed  by 
those  laws,  obtained  liis  certificate  by  the  payment  of  the  purchase- 
money,  and  retained  uninterrupted  possession  of  the  property,  can- 
not be  defeated  by  one  whose  entry  was  subsequent,  although  he 
has  fortified  iiis  title  with  a  patent;  such  person  having  notice  suffi- 
cient to  put  him  on  inciuiry  as  to  the  interests,  legal  or  equitable,  of 
the  pre-emption  clainumt. 

2.  A  decree  dismissing  a  bill  for  matters  not  involving  merits  is  no  bar 

to  a  subsequent  suit. 

3.  A  court  of  equity  will  set  aside  a  patent  of  the  United  States  obtained 

by  mistake  or  inadvertence  of  the  officers  of  the  land  office,  on  a  bill 
filed  for  that  purpose  by  the  government,  when  the  patent  prima 
facie  passes  the  title. 

4.  Open,  notorious,  and  exclusive  possession  of  real  property  by  parties 

claiming  it  is  sufficient  to  put  other  persons  upon  inquiry  as  to  the 
interests,  legal  or  equitable,  held  by  such  parties ;  and  if  such  other 
persons  neglect  to  make  the  inquiry,  they  are  not  entitled  to  any 
greater  consideration  than  if  they  had  made  it  and  had  ascertained 
the  actual  facts  of  the  case. 

Appeal  from  tlie  Circuit  Court  of  the  United  States  for  the 
Eastern  District  of  Louisiana. 

The  United  States  in  1848  filed  an  information  in  the  nature  of 
a  bill  in  equity  in  the  court  just  named  against  one  Hughes  for 
the  repeal  and  surrender  of  their  patent  for  a  tract  of  land  issued 
to  him  in  1841.  tendering  back  to  him  the  purchase-money.  The 
case  was  thus  : 

By  the  act  of  Congress  of  April  12th,  1814,  every  person  who 
had  inhabited  and  cultivated  a  tract  of  land  lying  in  that  portion 
of  the  State  of  Louisiana  which  had  composed  the  Territory  of 
Orleans,  or  in  the  Territory  of  Missouri,  in  cases  wliere  the  land 
was  not  rightfully  claimed  liy  any  other  person,  and  who  had  not 
removed  from  the  State  or  territory,  was  entitled  to  the  right  of 
pre-emption  in  the  purchase  of  the  land,  under  conditions  and 
regulations  prescribed  by  a  previous  act,  passed  with  reference 
to  certain  settlers  in  Illinois.  The  same  right  was  extended  by 
the  act  to  the  legal  representatives  of  the  original  occupant. 
Under  this  act  one  Goodbee,  in  1822,  applied  to  the  register  and 
receiver  of  the  land  office  of  the  district  to  become  a  purchaser 
of  a  tract  supposed  to  contain  about  one  hundred  and  sixty  acres, 


Hughes  v.  United  States.  175 

which  had  been  occupied  and  cultivated  by  one  Beedle  in  1H13, 
under  whose  settlement  he  claimed. 

His  right  to  pre-empt  the  tract  was  recognized  by  the  officers, 
and,  the  required  price  being  paid,  the  usual  certificate  was  issued 
to  him.  The  land  at  this  time  was  designated  as  lot  number  one, 
under  a  special  system  of  surveys  authorized  by  the  act  of  March 
3d,  1811.  It  was  some  years  later  before  the  general  system  of 
surveys  into  ranges,  townships,  and  sections  was  extended  over 
the  country,  and  when  this  took  place  the  legal  sul)division  em- 
braced about  fifteen  acres  in  excess  over  the  one  hundred  and 
sixty.  To  this  excess,  as  part  of  the  original  lot.  Goodbee's 
right  of  pre-emption  under  the  regulations  of  the  General  Land 
Office  also  attached. 

At  the  time  he  made  his  entry,  Goodbee  was  in  the  open  and 
exclusive  possession  of  the  premises,  and  either  he  or  his  grantees 
subsequently  continued  in  such  possession,  and  cultivated  the  land 
and  erected  valuable  and  permanent  improvements  thereon. 

In  1823  the  President,  by  proclamation,  ordered  the  sale  of  the 
public  lands  of  the  district.  The  proclamation  was  general  in  its 
terms,  embracing  all  the  lands,  without  excepting  such  as  had 
been  previously  pre-empted  or  reserved,  but  the  parcels  pre-empted 
or  reserved  were  designated  b}^  proper  entries  in  the  register  of  the 
land  oflflce.  The  tract  occupied  by  Goodbee  was  thus  designated, 
and  was  not  offered  at  the  public  sale  which  took  place. 

In  1836  Hughes  entered  this  tract  at  private  sale,  designating 
it  by  section,  township,  and  range — the  proper  description  under 
the  completed  public  surveys.  The  officers  of  the  land  office, 
overlooking  from  the  difference  in  its  description  the  fact  that 
the  tract  had  been  previously  sold  to  Goodbee,  gave  him  the  usual 
certificate  of  purchase  and  payment,  upon  which,  in  April,  1841, 
a  patent  was  issued  by  the  United  States. 

To  the  bill  or  information  filed  below  Hughes  demurred.  The 
court  gave  judgment  sustaining  the  demurrer.  This  judgment 
having  come  on  appeal  here,  at  December  Term.  1850  (11  Howard, 
552),  was  reversed,  the  demurrer  overruled,  and  the  patent  to 
Hughes  decreed  null  and  void,  and  ordered  to  be  surrendered. 
This  decree  was  afterwards  by  consent  set  aside,  and  the  cause 
remanded  to  the  circuit  court,  with  leave  to  the  defendant  to 
answer,  and  for  further  proceedings  according  to  equit3\  He 
accordingly  did  answer;  the  grounds  of  defence  now  set  forth 


176  Hughes  v.  United  States. 

beiuu'  that  he  had  obtained,  in  the  State  courts  of  Louisiana,  two 
several  jud<>ineuts  in  two  distinct  suits. 

The  first  was  ejectment  brought  by  him  against  one  Sewall, 
tenant  in  possession  and  claimant  of  the  title  under  Goodbee, 
which  suit  had  gone  in  his  favor. 

The  second  one  was  brought  against  him  by  this  same  Sewall 
and  one  Hudson  (both  claimants  under  Goodbee),  who  sought  to 
set  aside  the  patent  to  Hughes  on  the  same  allegations  of  fraud, 
as  it  was  alleged,  and  the  same  exhibition  of  documents,  that  at 
their  instance  were  now  set  forth  by  the  United  States  in  the  bill 
or  information  filed  in  the  Circuit  Court  of  the  United  {states. 

This  second  suit  was  dismissed  for  want  of  jurisdiction  and 
absence  of  proper  parties— so  far  as  the  petition  related  to  the 
relief  sought  by  the  bill  in  the  present  suit— and  it  was  dismissed 
Generally,  because  it  was  defective,  uncertain,  and  insufficient  in 
the  statement  of  the  cause  of  action. 

In  the  suit  of  Hughes  v.  Seivall,  judgtnent  was  given  in  favor  of 
Hughes,  on  the  ground  that  the  court  could  not,  in  that  action, 
look  behind  the  patent  to  inquire  into  the  equities  of  the  parties. 
The  Supreme  Court  of  Louisiana  affirmed  this  judgment  or  appeal, 
but  granted  a  stay  of  execution  until  the  validity  of  the  patent 
could  be  judicially  ascertained, 

The  Circuit  Court  of  the  United  States  below  was  of  opinion 
that  no  sufficient  defense  was  shown  by  the  judgments  set  up,  as 
above  stated,  and  that  the  United  States  were  entitled  to  the  relief 
prayed  for.  and  it  decreed  acordingly. 

The  case  came  here  by  appeal,  and  was  submitted  hy  Mr 
Stanber^',  A.  G.,  and  Mr.  Ashton,  Assistant  A.  G.,  for  the  United 
States,  and  by  Mr.  Cary,  contra. 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

This  suit  is  brought  to  vacate  the  patent  to  Hughes,  and  compel 
its  surrender  for  cancellation.  Tt  proceeds  upon  the  ground  that 
the  patent  was  issued  in  violation  of  the  rights  of  Goodbee,  or 
parties  deriving  title  under  him,  and  that  its  existence  impairs 
the  ability  of  the  government  to  fulfil  its  engagements  to  him. 

By  the  act  of  April,  1814,  the  United  States  had  extended  to 
Goodbee  the  privilege  of  purchasing  the  land,  and  had  prescribed 
the  mode  of  proceeding  to  make  the  purchase,  and  fixed  the  price 
to  be  paid.  When  this  mode  was  pursued,  and  the  price  was 
paid,  a  contract  was  completed  between  him  and  the  government. 


Hughes  v.  United  States.  177 

Tvhich  the  latter  was  bound  to  execute  l)y  a  transfer  of  the  title. 

The  patent  to  Hughes,  subsequently  issued,  stood  in  the  way 
of  an  etBcicnt  and  just  execution  of  this  contract. 

Its  operation  was  either  to  divest  the  United  States  of  the  legal 
title,  or,  by  clouding  the  title,  to  impair  the  security  which  would 
otherwise  flow  from  their  conveyance.  When  this  case  was  here  on 
demurrer.  (11  Howard,  568.  See,  also,  Jacksonx.  Lcavtoa,  10  John- 
sou.  23),  the  patent  was  considered  by  the  court  to  be  a  valid  instru- 
ment conveying  the  fee  of  the  United  States,  and.  until  annulled,  as 
rendering  them  incapable  of  complying  with  their  engagement  to 
Goodbee  or  his  alienees.  Whether  regarded  in  that  aspect,  or  as 
a  void  instrument,  issued  without  authority,  it  prima  facie  passed 
the  title,  and,  therefore,  it  was  the  plain  duty  of  the  United  States 
to  seek  to  vacate  and  annul  the  instrument,  to  the  end  that  their 
previous  engagement  might  be  fulfilled  by  the  transfer  of  a  clear 
title,  the  only  one  intended  for  the  purchaser  by  the  act  of 
Congress. 

The  power  of  a  court  of  equity,  by  its  decree  to  vacate  and 
annul  the  patent,  under  the  circumstances  of  this  case,  is  un- 
doubted. Relief,  when  deeds  or  other  instruments  are  executed 
by  mistake  or  inadvertence  of  agents,  as  well  as  upon  false  sugges- 
tions, is  a  common  head  of  equity  jurisdiction. 

The  patentee  cannot  complain  of  the  proceedings,  for  the  open, 
notorious,  and  exclusive  possession  of  the  premises,  by  the  parties 
claiming  under  Goodbee,  when  the  patentee  made  his  entry  and 
received  the  patent,  was  sufficient  to  put  him  upon  inquiry  as  to 
the  interest,  legal  or  equitable,  held  by  them  ;  and  if  he  neglected  to 
make  the  inquiry,  he  is  not  entitled  to  any  greater  consideration 
than  if  he  had  made  it  and  ascertained  the  actual  facts  of  the 

case. 

The  judgments  recovered  by  Hughes  in  the  State  court  of 
Louisiana— one  in  an  action  brought  by  him  against  Sewall.  and 
one  in  action  brought  against  him  by  Sewall  and  Hudson— con- 
stitued  no  bar  to  this  suit.  The  first  case  was  ejectment  against 
Sewall.  who  was  at  the  time  in  the  occupation  of  the  land,  and  judg- 
ment passed  in  Hughes'  favor,  on  the  ground  that  the  court  could 
not.  in  that  form  of  action,  go  behind  the  patent  and  inquire  into 
the  equities  of  the  parties.  On  appeal,  the  judgment  was  affirmed 
by  the  Supreme  Court  of  the  State,  but  was  accompanied  with  a 
stay  of  execution  until  the  validity  of  the  patent  should  be  judi- 
cially ascertained. 

12 


178  Tate  v.  Carney. 

The  second  case  was  a  petitory  action,  brought  by  Sewall  and 
Hudson,  claimants  under  Goodbee.  haviug  for  its  object  the 
vacation  of  the  patent,  the  annuhnent  of  the  above  judgment 
against  Sewall,  then  pending  on  appeal  in  the  Supreme  Court  of 
the  State,  the  recovery  of  damages,  and  the  obtaining  of  an  injunc- 
tion. No  judgment  was  passed  upon  the  merits  of  any  matter 
alleged.  The  petition  was  dismissed  for  want  of  jurisdiction 
and  tlie  absence  of  proper  i)arties.  so  far  as  it  related  to  the  special 
relief  sought  by  this  suit — the  vacation  and  surrender  of  the 
patent — and  it  was  dismissed  generally  on  the  ground  that  it  was 
"defective,  uncertain,  and  insufficient  in  the  statement  of  the 
cause  of  action." 

It  requires  no  argument  to  show  that  judgments  like  these  are 
no  bar  to  the  present  suit.  In  order  that  a  judgment  may  con- 
stitute a  bar  to  another  suit,  it  must  be  rendered  in  a  proceeding 
between  the  same  parties  or  their  privies,  and  the  point  of  contro- 
versy must  be  the  same  in  both  cases,  and  must  be  determined 
on  its  merits.  If  the  first  suit  was  dismissed  for  defect  of  plead- 
ings, or  parties,  or  a  misconception  of  the  form  of  proceeding,  or 
the  want  of  jurisdiction,  or  was  disposed  of  on  any  ground  which 
did  not  go  to  the  merits  of  the  action,  the  judgment  rendered  will 
prove  no  bar  to  another  suit  Walden  v.  Bodley.  14  Peters,  156  ; 
1  Greehleaf's  Ev.,  §§  529  and  530,  and  authorities  there  cited. 

Judgment  affirmed. 

(See,  as  to  the  second  pomt  of  the  sj'llabus,  United  States  v.  Stoiie,  2 
Wallace,  525'. — Rep.)  (And,  as  to  the  third  pohit  of  the  syllabus,  see 
Leavenworth,  etc.,  fi.  R.  Co.  v.  United  States,  2  Otto,  733.) 


Chakles  Tate  and  others,  Plaintitfs  in  Error,  v.  John  G.  Carney 

and  others. 

December  Term,  1860.— 24  Howard,  357  ;  4  Miller,  170. 

Power  of  Register  and  Receiver  of  Land  Office. 

1.  The  decisiong  of  the  register  and  receiver  of  the  land  ofl3ce,  under 

the  act  of  May  8,  1822,  concerning  lands  west  of  the  Perdido  river, 
are  not  conclusive  of  the  facts  on  which  they  act. 

2.  Such  receivers  have  no  right  to   reconsider  and   annul  certificates 

granted  by  their  predecessors  many  years  before,  under  which  the 
land  has  been  held  in  possession  and  bona  fide  titles  acquhed. 


Tate  v.  Carney.  179 

3.  A  certificate  and  patent,  on  such  second  decision,  whicli  reserves  the 
rio-hts  of  the  claimant  under  the  first  certificate,  loaves  open  the 
question  of  rig-iit  in  the  matter  under  the  two  claims. 

Writ  of  error  to  the  Supreme  Court  of  Louisiana.  The  case 
is  stated  in  the  opinion. 

Mr.  Benjamin  for  plaintiffs. 
Mr.  Taylor  for  defendants. 

Mk.  Justice  Campbell  delivered  the  opinion  of  the  court. 

This  cause  comes  before  this  court  by  a  writ  of  error  to  the 
Supreme  Court  of  the  State  of  Louisiana,  under  the  2oth  section 
of  the  judiciary  act  of  September,  1789.  The  defendant  in  error 
(Carney)  commenced  a  suit  in  the  district  court  of  the  8th  judicial 
district  of  Louisiana,  in  which  he  asserted  that  he  had  purchased, 
in  the  year  1844,  at  the  proliate  sale  of  the  succession  of  Sarah 
Cohern,  deceased,  five  hundred  and  sixty  acres  of  land  on  Cool 
creek,  in  that  district,  and  that  Charles  Tate  had  disturbed  his 
possession  and  denied  his  title.  He  summoned  Charles  Tate  to 
exhibit  his  claim  to  the  land,  and  required  the  representatives  of 
Sarah  Cohern,  deceased,  to  maintain  the  title  they  had  warranted 
to  him.  or  to  refund  the  purchase  money  he  had  paid.  The  result 
of  various  proceedings  in  the  district  court  was  the  forming  of 
an  issue  between  the  defendant  in  error  and  the  plaintiffs  in  error, 
relative  to  their  respective  rights  in  the  said  parcel  of  land.  It 
is  situated  in  the  section  of  country  east  of  the  Mississippi  river 
and  the  island  of  New  Orleans,  and  west  of  the  Perdido  river, 
which  was  claimed  by  the  United  States  under  the  treaty  of  Paris 
of  1803,  for  the  cession  of  Louisiana,  and  which  was  adversely 
claimed  and  possessed  by  Spain  as  a  portion  of  West  Florida 
until  1812-13.  The  act  of  Congress  for  ascertaining  the  titles 
and  claims  to  lands  in  that  part  of  Louisiana  which  lies  east  of 
the  Mississippi  river  and  island  of  New  Orleans,  approved  25th 
April,  1812,  is  the  first  of  the  series  of  acts  that  apply  to  this 
district.  (2  Stats,  at  Large,  713.)  The  8th  section  requires  the 
commissioners  to  be  appointed  under  the  act  to  collect  and  report 
to  Congress,  at  their  next  session,  a  list  of  all  the  actual  settlers 
on  land  in  said  districts,  respectively,  who  have  no  claims  to 
land  derived  either  froiii  the  French.  British,  or  Spanish  govern- 
ments, and  the  time  at  which  such  settlements  were  made.  The 
reports  made  by  the  commissioners  appointed  under  the  act  of 
1812  were  submitted  to  Congress,  and  are  the  subject  of  the  act 


180  Tate  v.  Carney. 

of  the  3d  March,  181 !».  for  adjusting  the  claims  to  land  and  estab- 
lishing land  offices  in  the  district  east  of  the  island  of  New 
Orleans.     (3  Stats,  at  Large,  528.) 

The   third    section    of  this    act   provides,  '-that  every  person 

whose  claim  is  comprised  in  the  lists  or  register  of  claims  reported 

hy  the  said  commissioners,  and  the  persons  embraced  in  the  list 

of  actual    settlers   not   having  any   written    evidence   of   claim 

reported  as  aforesaid,  shall,  when  it  appears  by  the  said  reports 

or  by  the  said  lists,  that  the  land  claimed  or  settled  on  had  been 

actually  inhabited  or   cultivated  by  such  person  or  persons  in 

whose  right  he  claims,  on  or  before  the  fifteenth  of  April,   1813, 

be  entitled  to  a  grant  for  the  land  so  claimed  or  settled  on  as  a 

donation,  provided  that  not  more  than  one  tract  shall  be  thus 

granted  to  any  one  person,  and  the  same  shall  not  contain  more 

than  six  hundred  and  forty  acres.'"     By  the  9th  section  of  this 

act,  the  register  and  receiver  of  the  land  offices  in  that  district 

were  authorized  to  make  additions  to  the  list  of  settlers,  noting 

the  time  of  their  settlement,  and  to  report  the  same  to  Congress. 

These,  with  other  reports,  were  disposed  of  in  the  supplementary 

act  for  adjusting  land  claims  in  that  district,  adopted  8th  May, 

1822.     (3  Stats,  at  Large,  707.)     The  third  section  of  the  act  of 

1822  is  in  the  same  language  as  the  corresponding  section  in  the 

act  of  1819,  before  cited. 

The  sixth  section  of  this  act  requires  the  register  and  receiver 
to  grant  a  certificate  to  every  person  who  shall  appear  to  be 
entitled  to  a  tract  of  land  under  the  third  section  of  the  act. 
setting  forth  the  nature  of  the  claim  and  the  quantity  allowed. 
In  1820,  Rol)ert  Yair  made  proof  in  the  land  otflce  that  in  the 
year  1805  he  had  settled  upon  a  parcel  of  land  in  the  district, 
and  had  occupied  and  cultivated  it  from  that  time  until  the  date 
of  his  application  and  proof.  His  claim  was  reported  to  Congress, 
and  in  1824  a  certificate  issued  to  him  for  that  land,  which  is  the 
land  in  controversy.  Robert  Yair  continued  to  occupy  the  land 
until  his  death,  in  1825  or  1826,  when  it  passed  to  his  widow  and 
heirs.  The  defendant  in  error  (Carney)  traces  his  title  to  these 
heirs.  The  claim  of  the  plaintiffs  in  error  is  traced  to  Nancy 
Tate,  their  ancestress,  who  made  a  settlement  in  the  same  dis- 
trict in  1811,  and  whose  claim  was  reported  under  the  act  of 
1812,  before  cited. 

In  the  year  1847,  her  heirs  applied  to  the  register  and  receiver 
of  the  land  office  in  that  district  for  an  order  of  survev.  in  which 


Tate  v.  Carney.  181 

application  the}''  represented  that  Nancy  Tate  was  entitled  to  a 
section  of  land  nnder  the  acts  of  Congress  aforesaid  ;  that  she 
had  settled  upon  public  land  in  an  adjoining  section,  forty-one  ; 
that  John  Tate  was  settled  upon  the  same  section,  and  that  both 
could  not  have  their  complement  of  land,  from  their  proximity, 
out  of  land  contiguous  to  their  settlement.  But  that  there  was 
vacant  land  to  the  east  and  northeast,  not  claimed  by  any  person, 
sufficient  to  make  up  the  quantity  she  had  been  entitled  to,  and 
prayed  for  the  order,  as  one  that  could  not  injure  any  otiier 
person.  The  register  and  receiver  caused  a  notice  to  be  served  on 
the  defendant  in  error,  to  show  cause  why  the  order  should  not  be 
granted.     There  is  no  evidence  that  he  appeared  on  this  notice. 

In  February.  184H.  the  register  and  receiver  made  a  decision, 
in  which  they  declared  that  Nancy  Tate  had  settled  upon  this 
land  ;  that  they  were  satisfied  that  Robert  Yair,  at  the  time  of 
the  confirmation  to  him.  was  the  holder  of  another  donation  for 
one  thousand  arpents,  and  that  he  was  not  entitled  to  this  under 
the  act  of  1822,  for  that  reason.  They  annulled  the  certificate 
that  had  been  issued  to  him,  and  granted  the  order  of  survey  as 
applied  for.  The  survey  was  made  to  include  this  laud,  and  a 
patent  was  issued  in  favor  of  the  representatives  of  Nancy  Tate 
in  1853.  This  patent  describes  the  land  as  covered  by  the  claim 
of  Robert  Yair,  and  releases  the  land,  subject  to  any  valid  right,  if 
such  exists,  in  virtue  of  the  confirmed  claim  of  Robert  Yair,  or  of 
any  other  person  claiming  from  the  United  States,  the  French, 
British,  or  Spanish  governments.  The  Supreme  Court  of  Louis- 
iana have  found  from  the  testimony  that  Nancy  Tate  was  not  an 
occupant  of  this  land,  and  that  the  settlement  of  Robert  Yair  and 
his  representatives  had  been  continuous  for  some  forty  j^ears. 
The  question  for  the  consideration  of  this  court  is,  whether  the 
decision  of  the  register  and  receiver  of  the  land  office  in  favor  of  the 
plaintifl^s  in  error  is  conclusive  of  the  controversy.  The  Supreme 
Court  decided  that  it  was  not,  and  we  concur  in  that  opinion. 

In  Doe  V.  Eslava,  9  How.,  421,  the  defendant  in  error  relied 
upon  a  decision  of  the  register  and  receiver  of  a  land  office  in  the 
same  district,  with  the  same  powers  as  were  confirmed  upon  these, 
as  conclusive  in  his  favor.  This  court  answered:  "We  do  not 
consider  that  the  act  of  May  8th.  1822.  and  that  of  the  same  date, 
which  is  connected  with  it.  and  referred  to  as  in  pari  materia,  for 
a  guide,  meant  to  confer  the  adjudication  of  titles  of  land  on 
registers  and  receivers.     Sometimes,  as  in  the  case  of  pre-emp- 


182  Tate  v.  Carney. 

tious,  they  are  authorized  to  decide  on  the  fact  of  cultivation 
or  not,  and  here,  from  the  words  used,  no  less  than  their  character, 
they  must  be  considered  as  empowered  to  decide  on  the  true 
location  of  grants  or  confirmations,  but  not  on  the  legal  and 
often  complicated  questions  of  title,  involving,  also,  the  whole 
interests  of  the  parties,  and  yet  allowing  no  appeal  or  revision 
elsewhere.  The  power  given  to  them  is,  to  decide  only  how  the 
lands  confl^rmed  shall  be  located  and  smn^eyed. 

"The  further  power  to  decide  on  conflicting  and  interfering 
claims  should  apply  only  to  the  location  and  survey  of  such 
claims,  which  are  the  subject-matter  of  their  cognizance  ;  and  on 
resorting  to  the  reference  made  to  the  second  act  of  Congress, 
that  act  appears  also  to  relate  to  decisions  on  intrusions  upon 
possessions  and  other  kindred  matters." 

The  case  of  Cousin  v.  Blanc,  19  How..  203,  involved  a  question 
of  the  effect  and  binding  operation  of  a  decision  of  the  register 
and  receiver  of  the  land  office  upon  a  location  and  survey  of  a 
claim  confirmed  under  the  act  of  1822,  and  refers  to  the  act  of 
the  3d  of  March,  1831,  as  showing  that  the  decisions  of  the  register 
and  receiver  were  not  to  be  considered  as  precluding  a  legal 
investigation  and  decision  by  the  proper  judicial  tribunals  between 
the  parties  to  interfering  claims.    (4  Stats,  at  Large.  492.) 

It  furnishes  no  support  of  the  argument  that  the  decision  of 
the  register  and  receiver  in  such  a  case  as  this  is  conclusive  of 
the  title.  There  is  no  dispute  in  this  case  upon  the  subject  of  the 
location  of  the  claim  of  Yair.  The  whole  case  shows  that  it  had 
been  identified  and  was  actually  possessed  by  Yair  and  his  heirs. 
The  patent  of  the  defendants  in  error  acknowledges  that  its  loca- 
tion had  been  made,  and  that  the  new  survey  for  the  claim  of 
Mrs.  Tate  covered  this  location.  The  decision  of  the  register  and. 
receiver  does  not  proceed  upon  any  assumption  of  a  conflict  of 
location,  but  of  a  denial  of  the  right  of  Yair.  They  had  no 
authority  to  overthrow  the  decision  of  the  register  and  receiver 
that  had  been  made  more  than  twenty  years  before,  which  had 
been  followed  by  possession,  and  as  to  wliich  there  had  intervened 
the  claims  of  the-  bona  fidf  purchasers.  It  further  appears  that 
Mrs.  Tate  did  not  settle  upon  this  parcel  of  land,  and  that  the 
decision  of  the  register  and  receiver  in  her  favor  is  not  supported 
by  testimony.  The  judgment  of  the  Supreme  Court  of  Louisiana 
does  not  contain  Siwy  error  within  the  scope  of  the  revising  juris- 
diction of  this  court,  and  it  is  consequently.  Affirmed. 


Root  v.  Shields.  183 

EooT  V.  Shields. 
U.  S.  Circuit  Convt  Di>trif't  of  Nebraska,  1868.— 1  Woolworth,  340. 

I.  ClKCUMSTANCES  SHOWING   THAT  A  PARTY  HAD   NO    INTENTION  OF 

PKE-EMPTING  A  TKACT  OF  PUBLIC   LAND. 

A  party  who  goes  into  possession  of  a  small  parcel  of  a  tract  of  govern- 
ment land,  under  a  claim  of  right  inconsistent  with  a  pre-emption 
claim  ;  who  sells  and  repurchases  the  property  as  town  lots  ;  who, 
in  a  document  wherein  he  is  required  to  state  his  residence,  states 
it  as  being  elsewhere  ;  who  removes,  and  remains  long  absent  from 
the  land ;  and  who,  from  the  first,  never  asserts  any  pre-emption 
right  to  the  tract,  cannot  be  deemed  to  have  intended  to  claim  such 
right. 

II.  Combinations  to  prevent  competition  at  land  sales  afford 

NO  defence  to  a  party  not  injured  by  THEM.l 

A  party  who  is  not  himself  injured  thereby  cannot  defeat  the  title 
of  tlie  piu-chaser  at  a  sale  by  auction  of  public  laud,  by  sliowing  that 
a  combination  to  prevent  competition  in  bidding  was  formed  by 
means  of  which  persons  were  prevented  from  bidding,  and  the  land, 
wortli  at  tlie  time  $-")0  per  acre,  was  obtained  for  S1.2o  per  acre. 

III.  City  PURCHASING  land  not  needed  for  its  corporate  pur- 
poses. 

1.  Jinle  at  common  law. — At  the  common  law,  a  municipal  corpora- 
tion can  take  and  liold  the  title  to  such  lands  only  as  its  necessities 
require  ;  nor  can  it  take  the  title  in  another's  name,  in  trust  for 
itself. 

2.  Modified  hy  statute. — This  rule  is  clianged  in  Nebraska  by  statute. 

3.  Title  of  trustee. — The  objection  at  the  common  ^jiw  would  avoid 
the  trust,  and  leave  the  title  in  the  trustee,  discharged  of  all  duty  to 
the  corporation,  and  subject  to  be  disposed  of  by  him,  if  he  lield  by  a 
deed  absolute  on  its  face,  and  paid  the  consideration,  and  the  trust 
were  evidenced  onh'  by  agreement  between  him  and  the  corporation. 

IV.  Priority  of  entry.— A  pre-emption  entry,  not  affected  by  a 
radical  infirmity,  will  be  uplield  as  against  a  subsequent  purchaser. 

V.  Lands  not  subject  to  pre-emption.— Lands  included  within  the 

limits  of  an  corporated  town  are  not  subject  to  entry  under  the  pre- 
emption law  of  September  4,  1841.     o  Stat,  at  Large,  453. 

1.  Mischiefs  of  tlie  act. — This  provision  o!  the  statute  affords  no 
room  for  the  mischief  of  including  lands  within  the  limits  of  a  city,  in 
order  to  exclude  them  from  the  operation  of  the  law. 

2.  Not  repealed  by  onjanic  act. —  The  provision  is  not  repealed  by 
the  organic  act,  providing  that  the  legislature  of  the  territory  of 
Nebraska  shall  not  interfere  with  the  primary  disposal  of  the  soil. 
10  Stat,  at  Large,  277.) 

(1.)  Argil. — 'I'his  lan2:uage  has  been  used  for  over  fifty  years  in  acts 
admitting  new  States  into  the  Union,  and  their  power  to  incorporate 
towns  on  the  public  lands  was  never  questioned. 


184  Root  r.  Shields. 

(2.)  Argil.— '\'hi}  witlulmwal  nf  the  lands  from  the  operation  of  the 
pre-emption  law  is  the  eilect  of  the  act  of  Congress,  and  not  of  the 
municipal  charter. 

(;}.)  Argil.— Vhe  provision  of  the  organic  act  was  aimed  at  a  direct 
claim  of  proprietorship  on  the  part  of  the  territory. 

8.  The  <x/<-id  of  lanil  which  may  he  included  within  a  city  is  not 
limited  by  the  act  of  :vhay  23,  184-4  (.5  Stat,  at  Large,  'i.o7),  providing 
for  the  corporate  authorities  pre-empting  for  the  citizens  320  acres 
of  the  town  site. 

4.  Policy  of  pi  ovisioi'. — The  provision  excepting  such  lands  from 
operation  of  the  pre-emption  act  was  inserted,  as  were  other  excep- 
tions, to  secure  to  the  government  the  enhanced  value  of  laiids  in 
and  adjoining  a  town. 

VI.  Answer  as  evidence. — Circimistances  tending  to  establish  a  fact, 
held  to  be  insufficient  to  countervail  the  positive  denial  in  the  answer. 

VII.  Bona  fide  pukchasers. 

1.  Although  they  have  purchased  without  any  knowledge,  in 
fact,  of  any  defect  in  their  title,  yet  parties  will  not  be  protected  as 
/   bona  fide  purchasers. - 

(1.)  Who  purchased  before  the  patent  of  the  government  issued, 
because  until  then,  the  fee  is  in  the  United  ."^tates,  and  the  pre-emp- 
tor  and  his  grantees  hold  only  an  equity."^ 

(2.)  When  the  defect  arises  out  of  a  rule  of  law  of  which  they  are 
bound  to  take  notice. 

(3.;  When  the  title  acquired  is  absolutelj^  void. 


This  was  a  bill  in  chancer}^,  filed  originally  in  the  District  Court 
of  the  late  Territory  of  Nebraska.  The  plaintiff  having  bad  a 
decree  there,  the  defendants  carried  it  by  appeal  to  the  Supreme 
Court  of  the  Territory,  where  it  was  pending  when  the  State  was 
admitted  into  the  Union.  The  plaintiff  being  a  citizen  of  Nebraska 
and  the  defendants  citizens  of  other  States,  the  cause  was  removed 
into  this  court,  and  heard  here  upon  the  transcript  of  the  record 
of  the  District  Court  filed  in  the  Supreme  Court. 

In  1854,  certain  parties  having  associated  themselves  together 
as  a  joint  stock  company,  under  the  name  of  the  Omaha  City 
Company,  sui'veyed  and  platted  into  lots  certain  portions  of  the 
public  lands  as  an  addition  to  the  city  of  Omaha,  and  among 
others  the  west  half  of  the  southwest  quarter  of  section  10,  and 
the  north  half  of  the  northwest  quarter  of  section  15,  in  township 
15  north,  range  13  east  of  the  sixth  principal  meridian.  This 
company  issued  to  different  parties  certificates,  setting  forth  that 
the  holder  thereof  respectively  would  be  entitled  to  twenty  lots. 
The  defendant  Shields  was  the  holder  of  one  of  these  certificates, 


Root  v.  Shields.  185 

and  when  the  company  divided  the  lots  among  the  holders  of  the 
certificates  he  received  ten.  situated  in  block  12H^.  Under  this 
title  he  entered  upon  these  lots  in  1855,  and  built  a  house  thereon, 
and  ran  a  fence  around  them  on  the  line  between  them  and  the 
streets.  He  lived  in  this  house  with  his  family  until  June.  1856, 
when  he  sold  the  property  to  one  Beesora,  describing  it  in  the 
deed  of  conveyance  as  lots  in  the  above-named  addition  to  the 
town,  and  by  the  numbers  by  which  they  were  designated  on  this 
plat,  and  by  which  he  had  drawn  them.  He  then  removed  to 
Omaha,  where  he  lived  for  a  while,  when  he  settled  on  another 
tract  of  land  in  the  neighboring  county  of  Sarpy.  While  residing 
there  he  filed  in  the  office  of  the  register  of  the  land  office  a  writtten 
statement  of  his  declaration  of  intention  to  pre-empt  said  lands 
under  the  act  of  September  4,  1841,  and  in  his  declaratory  state- 
ment he  described  himself  as  -of  the  county  of  Sarpy.'"  He  con- 
tinued to  reside  here  until  September.  1857,  when  he  repurchased 
from  Beesom  the  lots  above  mentioned,  they  being  in  the  recon- 
veyance described  as  in  the  former  deed.  The  plaintiff  alleges 
that  he  did  this  in  pursuance  of  an  agreement  with,  and  with 
money  furnished  by,  the  defendant  Test,  which  the  defendants 
deny.  He  then  removed  to  the  property  into  the  house  he  had 
previously  built,  but  made  no  other  improvements  ;  and  imme- 
diately thereupon  he  filed  in  the  register's  office  his  written  declara- 
tion of  intention  to  pre-empt  the  tract  first  above  described  under 
the  act  of  September  4,  1841,  in  which  statement  he  alleged  a  set- 
tlement in  April,  1856,  that  being  the  time  when  he  built  the 
house  and  first  removed  to  the  tract.  On  the  21st  of  November 
following  he  made  proof  to  the  satisfaction  of  the  register  and 
receiver  of  such  matters  as  are  required  b}^  law  to  be  shown  to 
them  to  entitle  applicants  to  pre-empt  lands  :  and  he  took  the 
oath  prescribed  in  that  behalf  and  entered  the  land  under  the  act, 
receiving  the  usual  patent  certificate.  The  bill  alleges,  and  the 
defendants  deny,  that  this  was  in  pursuance  of  an  agreement 
between  him  and  Test,  and  that  he  should  deed  a  part  of  the  land 
to  him.  On  the  23d  of  the  same  month  he  conveyed  to  Test  an 
undivided  half  of  the  whole  quarter-section  thus  pre-empted  by 
him,  as  is  alleged  in  execution  of  said  agreement ;  and  in  the 
following  January  he  conveyed  the  other  undivided  half  to  the 
defendant  Smith.  After  this  the  Commissioner  of  the  General 
Land  Office  returned  the  case  to  the  local  office,  and  directed  a 
rigid  re-investigation  of  Shield's  pre-emption  right  in  the  tract. 


186  Root  v.  Shields. 

This  took  place  in  May  ;  and  upon  voluminous  testimony  adduced 
in  support  of  and  adversely  to  the  right,  the  local  office  found 
against  the  entry,  and  so  reported  to  the  commissioner.  He 
affirmed  this  decision,  and  the  parties  liolding  under  Shields,  in 
his  name,  appealed  to  the  Secretary  of  the  Interior,  who  was  at 
tliat  time  the  Hon.  Jacob  Thompson. 

That  officer  affirmed  the  previous  decisions,  and  in  pursuance 
of  his  order  in  that  behalf  the  entry  made  by  Shields  was  vacated. 
This  was  on  the  5th  of  May  1860  ;  but  on  the  13th  of  December. 
1861,  the  Hon.  Caleb  Smith,  having  succeeded  Mr.  Thompson  in 
the  Interior  Department,  without  notice  to  any  party,  reversed 
the  former  decision  of  his  office,  decided  in  favor  of  Shields' 
pre-emption  right,  and  directed  a  patent  to  issue  to  him,  which 
was  done. 

Such  was  the  history  of  the  title  as  it  stood  in  the  defendants. 
The  connection  of  the  plaintiff  with  the  title  was  this  :  After  Mr. 
vSccretary  Thompson  had  decided  adversely  to  Shields'  right,  and 
after  the  entry  which  he  in  1857  had  made  was  canceled,  and 
before  Mr.  Secretary  Smith  had  come  into  office,  the  land  was  by 
the  commissioner  ordered  to  be  sold  at  public  auction,  on  thirty 
daj^s'  notice,  as  a  disconnected  tract ;  and  on  the  10th  of  July, 
1880,  it  was  accordingly  sold,  a  part  to  one  Monell  and  a  part  to 
one  Smith.  Monell  did  not  purchase  on  his  own  behalf,  but  in 
trust,  partly  for  those  who  held  deeds  to  lots  from  the  Omaha 
City  Company,  and  partly  for  the  city.  The  plaintiff  held  deeds 
to  some  of  the  lots,  and  purchased  from  the  city  other  portions 
of  the  tract,  and  Monell  accordingly  conveyed  them  to  him. 

Between  the  time  Shields  conveyed  the  lots  to  Beesom  and 
removed  from  the  tract  to  Omaha,  and  the  time  he  repurchased 
them  and  returned  to  his  former  home,  that  is  to  say,  on  the  14th 
of  February,  1857.  the  legislature  of  Nebraska  incorporated  the 
city  of  Omaha,  This  tract  of  land,  and  also  some  3,000  acres 
besides,  were  included  within  the  corporate  limits  of  the  city. 
In  March  of  that  year  its  authorities,  under  the  act  of  May  23, 
1844,  entered  at  the  land  office  as  the  town-site  320  acres.  From 
this  tract  that  first  mentioned  was  more  than  a  mile  distant.  It 
had  never  bedn  occupied  for  any  other  than  agricultural  purposes. 

The  objections  taken  by  the  plaintiff  to  Shields'  entry  were  : 

1.  That,  in  point  of  fact,  Shields  never  settled  on  the  tract 
with  the  view  of  pre-empting  it,  until  September,   1857  ;  that  at 


Root  v.  Shields.  187 

that  time  it  was  included   witliiii   the  limits  of  an    incorporated 
€ity.  and.  by  force  of  the  act.  excluded  from  its  operation. 

The  clause  on  which  this  position  was  rested  was  as  follows  : 
"  Section  10.  Every  person,  being  the  head  of  a  family,"  &c., 
who  shall  '•  make  in  person  a  settlement  upon  tlie  public  lands," 
&c.,  ••  and  who  shall  inhabit  and  improve  the  same,  and  who  has  or 
shall  erect  a  dwelling  thereon,  shall  be  and  is  liereby  authorized 
to  enter  with  the  register  of  the  land  office,"  »S:c.,  '"a  quarter  sec- 
tion of  land,  to  include  tl*e  residence  of  such  claimant,  upon 
paying  to  the  United  States  the  minimum  price  of  such  lands, 
subject,  however,  to  the  following  limitations  and  exceptions  : 
*  *  *  No  sections  or  fractions  of  sections  included  within  the 
limits  of  any  incorporated  town." 

2.  That  Shields  effected  his  entr}^  for  speculative  purposes,  and 
in  pursuance  of  a  contract  previously  made  with  Test  to  convey 
a  part  of  it  to  him  ;  and,  it  was  claimed  that  this  avoided  the 
entry  b}^  force  of  the  loth  section,  which  required  every  person, 
before  making  the  entry,  to  take  an  oath  before  the  register  that 
he  or  she  had  not  "  settled  on  or  improved  said  land  to  sell  the 
same  on  speculation,  but  in  good  faith  to  appropriate  the  same  to 
his  or  her  own  exclusive  use  and  benefit :  that  he  or  she  had  not 
directly  or  indirectly  made  any  agreement  or  contract,  in  any  way 
or  manner,  with  any  person  or  persons  whatsoever,  by  which  the 
title  which  he  or  she  might  acquire  from  the  government  of  the 
United  States  should  inure,  in  whole  or  in  pai't,  to  the  benefit  of 
any  person  except  himself  or  herself." 

3.  It  was  also  claimed  that  the  record  showed  that  Shields  was 
the  owner  of  320  acres  of  land  at  the  time  of  asserting  this  pre- 
emption right,  and  was  within  the  exception  of  the  act  providing 
that  "  no  person  who  is  the  proprietor  of  320  acres  of  land  in  anj^ 
State  or  Territory  of  the  United  States,  shall  acquire  any  right 
of  pre-emption  under  this  act." 

4.  It  was  also  claimed  that  Mr.  Secretary  Thomjjson  having 
decided  against  the  validity  of  the  entry,  and  the  land  having 
been  offered  for  sale  as  government  land,  at  which  sale  the  title 
was  acquired  by  third  parties,  it  was  not  within  the  competency 
of  his  successor  to  summarily  reverse  this  decision,  avoid  the 
sale,  and  issjie  a  patent  to  Shields. 

On  these  grounds  a  decree  was  asked,  declaring  that  the  entry 
by  Shields  was  void,  and  decreeing  that  he  and  his  grantees  join 
in  a  conveyance  to  the  plaintiff. 


188  Root  v.  Shields. 

The  defendants  insisted  that  the  tract  was  not  within  the  excep- 
tion in  tlie  act  first  above  mentioned,  becanse  : 

1.  The  act  of  23d  INIay.  1844,  was  a  repeal  thereof  by  implica- 
tion. That  act  provides  that  the  corporate  authorities  of  a  city 
located  on  the  public  lands  may  enter  with  the  register  so  much 
of  the  town  site  as  is  actually  occupied  by  the  town,  in  trust,  for 
the  several  use  and  benefit  of  the  occupants  thereof,  according  to 
their  several  and  respective  interests. 

2.  That  the  construction  of  the  act^of  1841  was  unreasonable, 
and  involved  great  inconveniences. 

3.  Tliat  the  city  was  incapable  of  making  this  purchase  even 
by  a  trustee. 

4.  That  the  defendants,  except  Shields,  who  had  parted  with 
all  his  interest,  were  bona  fide  purchasers,  for  a  valuable  consid- 
eration, without  notice. 

2Ir.  Woolirorth  for  plaintiff. 
Mr.  Bri<i(js  for  defendants. 

i\lR.  Justice  Miller  : 

It  is  necessary  to  fix  the  point  of  time  at  which  Shields  first 
asserted  a  pre-emption  claim  to  these  lands  for.  in  the  view  which 
we  take  of  the  case,  upon  that  depends  the  validity  of  his  entry, 
and  of  the  title  which  was  acquired  in  virtue  thereof.  The  plaintiff, 
in  his  bill  insists  that  Shields  did  not  conceive  the  idea  of 
asserting  a  pre-emption  right  in  the  land  until  September,  1857^ 
and  supports  that  position  by  a  detailed  statement  of  the  facts 
connected  with  his  dealings  with  and  in  respect  of  the  tract. 
On  the  other  hand,  the  defendants,  in  their  answer,  insist  that 
Shields  acquired  a  right  to  pre-empt  the  land  as  early  as  April, 
1856,  and  that  he  did  nothing  subsequently  to  compromise  his 
claim  thereto. 

From  the  first,  down  to  September.  1857,  the  histor}'  of  these 
lands,  as  conclusively  shown  by  this  record,  is  this  :  At  an  early 
day,  almost  as  soon  as  Nebraska  was  open  for  settlement,  and 
very  shortly  after  the  city  of  Omaha  was  planted,  certain  parties, 
taking  to  themselves  the  style  of  the  Omaha  City  Company, 
divided  the  lands  here  in  dispute  into  lots,  and  made  a  plat  of 
them.  They  did  not  apportion  the  lots  among  themselves,  but 
they  issued  to  third  parties  certificates,  which,  upon  a  distribution 
afterwards  to  be  made,  entitled  the  holder  of  each  to  a  certain 
number  of  lots.     W  hen  this  distribution  among  the  holders  of  the 


Root  v.  Shields.  189 

certificates  took  place.  Shields  held  one  numbered  416,  and  drew 
certain  lots  in  block  128^,  and,  by  exchange  of  lots  with  one 
Mitchell,  who,  as  the  holder  of  another  certificate,  drew  others  in 
tlie  same  block,  he  became  possessed  of  a  right  (whatever  that 
was)  to  ten  lots,  all  lying  togetlier.  And,  bj^  deeds  from  the 
company  to  himself  and  to  Mitchell,  and  from  Mitchell,  Shields 
acquired  such  a  title  as  could  then  be  made  to  this  parcel  of  land, 
consisting  of  the  ten  lots. 

This  was  before  the  government  had  provided  any  means  by 
which  settlers  or  others  could  ac(piire  its  title  .to  any  lands  in 
Nebraska. 

It  was  under  this  title,  or  under  the  right  or  claim  thus  derived, 
that  Shields,  in  1856.  entered,  built  a  house,  and  took  up  his  resi- 
dence upon  this  parcel  of  the  quarter-section.  It  is  a  significant 
circumstance  that  he  built  his  fence,  enclosing  the  parcel,  on  the 
line  of  these  ten  lots,  and  the  streets  b}''  which  they  were  bounded. 

He  continued  to  live  here  for  some  time,  until  he  sold  out  to 
one  Beesom.  In  the  deed  which  he  then  made  to  Beesom,  he 
describes  the  property  sold  as  so  many  lots,  giving  their  numbers, 
in  block  128|,  in  the  city  of  Omaha. 

Thereupon  he  removed  to  Omaha,  and  afterwards  to  a  tract  of 
land  in  Sarpy  county.  Sometime  in  the  summer  of  1857,  he  filed 
with  the  register  of  the  land  office  his  statement  of  intention  to 
pre-empt  the  tract  of  land  in  Sarpy  county  on  which  he  lived,  and 
described  himself  therein  as  "  of  Sarpy  county."  In  September 
of  that  year,  he  re-purchases  fr^m  Beesom  the  lots  in  block  128^, 
and  in  the  conveyance  which  he  received,  the  premises  conveyed 
are  described  as  lots,  as  they  had  been  conveyed  by  him  in  his 
deed  to  Beesom.  Thereupon  he  asserts  a  right  to  the  whole 
quarter-section.  Passing  by  all  con  sideration  of  the  relative  rights 
and  duties  of  Shields  and  the  city  company,  arising  out  of  the 
manner  in  which  he  went  into  the  occupancy  of  the  lands,  and  also, 
of  the  effect  of  his  filing  on  one  tract  while  maintaining  a  claim 
of  pre-emption  to  another,  we  need  here  merely  direct  our  atten- 
tion to  the  inquiry,  what  was  Shields'  intentions  in  respect  of  the 
quarter-section,  as  shown  by  his  conduct  ?  We  see  him  entering 
into  a  very  small  portion  of  the  tract,  under  an  apparent  claim 
inconsistent  with  the  idea  of  a  pre-emption  right. 

We  see  him  selling  and  re-purchasing  the  lots  as  town  lots. 
which  can  hardly  be  reconciled  with  the  claim  to  the  tract  as 
agricultural  land.     We  see  him.  in  a  most  important  document, 


190  RooTy.  Shields. 

made  and  fded  in  a  i)ul)lie  office,  in  order  to  acquire  title  to  another 
tract,  describing  himself  as  residing  elsewhere. 

We  see  him  removing  from  the  land  which  he  here  claims, 
continuing  absent  therefrom  a  much  longer  period  than  he  ever, 
from  first  to  last,  resided  upon  it,  and  during  all  this  time  he 
never  asserts  any  claim  to  the  tract  under  the  pre-emption  law. 

When  these  facts  are  considered  in  connection  with  the  require- 
ment of  continued  and  bona  fide  residence  on  the  tract  claimed  by 
a  settler  under  the  beneficent  privileges  granted  by  the  pre-emp- 
tion law.  the  conclusion  is  irresistible,  that  he  had  no  idea  of 
asserting,  or  of  having  a.ny  other  rights  than  such  as  he  had  in 
the  lots  alone,  and  under  the  city  company's  deeds.  He  certainly 
never  asserted  any  right  of  pre-emption  to  the  whole  quarter- 
section. 

Indeed,  the  force  of  the  facts  above  enumerated  was  so  strong, 
that  upon  the  argument  the  counsel  for  the  defendants  Avas  con- 
strained to  concede,  notwithstanding  the  allegations  in  the  answer, 
that  it  was  not  until  September,  18.57,  that  Shields  acquired  or 
asserted  a  right  of  pre-emption  in  the  tract. 

This  matter,  then,  being  disposed  of,  the  other  facts,  so  far  as 
they  are  necessary  to  the  decision,  are  undisputed.  These  are 
the  following  : 

In  February,  1857,  the  city  of  Omaha  was  incorporated.  Nearly 
3,000  acres  were  included  within  the  corporate  limits.  The  tract 
here  in  question  was  a  part  of  these  lands.  In  September  follow- 
ing. Shields  filed  with  the  register  of  the  land  office  his  written 
declaration  that  he  claimed  and  intended  to  pre-empt  the  west 
half  of  the  southwest  quarter  of  section  10.  and  the  north  half  of 
the  northwest  quarter  of  section  15.  in  township  15  north,  range 
13  east  of  the  sixth  principal  meridian ;  and  in  November  of  the 
same  year,  he  made  proof  to  the  satisfaction  of  the  register  and 
receiver  of  those  facts  required  to  be  shown  by  pre-emption 
claimants,  took  the  prescribed  oath,  and  eflfected  his  entry  of 
the  tract,  and  received  the  usual  patent  certificate  therefor. 
When  the  papers  in  the  case  were,  by  the  local  officers,  accord- 
ing to  the  ugual  course  of  such  business,  transmitted  to  the 
Commissioner  of  the  General  Land  Ofl^ce,  he  remitted  them  to 
the  local  office  with  a  direction  that  the  right  of  Shields  should  be 
re-investigated. 

This  was  done,  and,  as  this  record  shows,  very  thoroughly  done. 
It  resulted  in  a  letter  addressed  by  the  local  officers  to  the  com- 


Root  v.  Shields.  191 

missioner,  holding  adverseh-  to  the  validity  of  the  entry,  upon 
several  orrounds. 

The  commissioner  affirmed  this  decision,  and  the  entry  was,  in 
the  summer  of  1858,  vacated.  From  this  decision  an  appeal  was 
taken  to  the  Secretary  of  the  Interior,  who,  at  that  time,  was  the 
Honorable  Jacob  Thompson,  and  he  affirmed  the  two  previous 
decisions.  The  lands  were  thus,  so  far  as  the  authority  of  the 
land  department  extended,  restored  to  the  Ijody  of  the  public 
domain.  Thereupon,  and  on  the  10th  day  of  July,  1860,  in  pur- 
suance of  an  order  of  the  commissioner,  the  local  officers  sold  the 
tract  at  public  auction,  as  government  land.  One  Smith  bid  in 
one  half,  and  one  Monell  the  other  half,  of  the  quarter-section. 
The  lands  in  question  in  this  suit  are  a  part  of  the  half  bidden  in 
by  Monell.  He  did  not  buy  for  himself,  but  in  trust,  partly  for 
persons  claiming  lots  under  the  deeds  of  the  Omaha  City  Com- 
pany, and  partly  for  the  city  of  Omaha.  This  plaintiff  held  deeds 
from  this  company  to  some  of  the  lots,  and  purchased  a  part  of 
the  tract  from  the  city  ;  and  Monell  accordingly  conveyed  the  lot 
to  him,  as  a  party  in  trust,  for  whom  the  purchase  to  that  extent 
was  made,  and  the  parcel  sold  to  him  by  the  city,  by  direction  of 
the  cit}'. 

These  deeds  were  made  in  January,  1861. 

The  plaintiff  entered  into  the  premises  shortly  afterwards,  and 
has  expended  considerable  sums  in  their  improvement. 

On  the  13th  day  of  December,-  1861,  the  Honorable  Caleb 
Simtli.  having  succeeded  Mr.  Thompson  as  Secretary  of  the 
Interior,  without  any  further  hearing  of  the  parties,  and  upon  the 
record  which  was  before  his  predecessor,  reversed  all  the  decisions 
which  had  been  made  upon  the  question  of  the  validity  of  Shields' 
entry,  and,  as  a  consequence,  such  action  vacated  the  public  sale, 
and  ordered  that  a  patent  issue  to  Shields.  Accordingly,  on  the 
24th  of  February,  1863,  without  any  further  proceedings,  the 
patent  was  issued  to  him.  These  are  the  undisputed  facts,  and 
in  the  view  which  we  take  of  the  ease,  are  sufficient  for  its  deter- 
mination. 

Several  objections  are  urged  to  the  plaintifTs  title,  to  which 
our  attention  should  be  first  addressed,  for,  whatever  may  be  the 
validity  of  the  title  alleged  by  the  defendants,  if  objections  may 
be  urged  against  that  of  the  plaintiff,  which  are  fatal  to  it,  no 
further  inquirj^  is  necessary. 

One  of  these  objections  is,  that  at  the  time  of  the  public  sale 


192  Root  v.  Shields. 

at  which  IMonell  purchased  the  land,  he.  the  i)laintiff.  and  others, 
entered  into  a  combination  to  prevent  competition  amont>;  bidders. 
This  allegation  in  the  answer  is  not  supported  by  proof ;  but  even 
if  it  were,  it  is  not  matter  of  defence  of  which  these  parties  can 
in  this  proceedina;  avail  themselves. 

The  charge  in  the  answer  is  in  substance  this  :  That,  before 
the  sale,  a  large  number  of  persons  entered  into  an  unlawful 
com))ination  to  protect  INIonell  in  bidding  in  one  half,  and  Smith 
the  other  half,  of  the  quarter-section,  at  $1.25  per  acre  ;  that  the 
plans  in  that  behalf  of  these  parties  was  matured  at  secret  meet- 
ings :  that  the  lands  were,  at  the  time,  worth  $50  per  acre,  and 
this  conspiracy  was  formed  to  defraud  the  United  States  of  a 
large  sum  of  money ;  that  these  parties  attended  the  sale,  many 
of  them  armed,  and  by  violent  threats  intimidated  many  persons 
who  were  desirous  of  bidding  on  the  lands,  so  that  they  did  not 
do  so ;  and  thus  iNIonell  and  Smith  were  enabled  to,  and  did.  ])id 
the  lands  in  at  the  minimum  price. 

Now,  it  is  apparent  that  all  that  this  charge,  as  made  in  the  an- 
swer, tends  to.  is  to  show  that  the  United  States  were  defrauded  by 
this  proceeding.  These  defendants  did  not  suffer  therefrom.  But 
the  United  States  do  not  complain.  On  the  other  hand,  with  every 
means  of  inquiring  into  such  a  matter  in  their  own  tribunals,  by 
their  own  officers,  they  accepted  the  sale  as  a  fair  one.  It  was 
never  set  aside  except  as  a  necessary"  consequence  of  reinstating 
a  prior  entry.  These  defendants  cannot  avail  themselves  of  an 
injury  which  they  charge  another  has  suffered,  when  the  injured 
party  not  only  does  not  complain,  but  even  affirms  the  act  by 
I  which  it  was  inflicted.  Especially  can  they  not  do  so  when  they 
\  aver  such  matter,  not  in  support  of  their  own  right,  but  in  order 
to  break  down  the  riglit  of  their  adversaries.  {FucMey  v.  Ford. 
24  Howard,  322.) 

Another  objection  urged  against  the  plaintiff's  title  is,  that  as 
the  city,  as  a  municipal  corporation,  was  incapable  of  making  this 
purchase  directly,  it  could  not  do  so  indirectly  by  the  aid  of  a 
trustee,  and  therefore  the  sale  to  Monell  was  void.  It  is  true  that, 
at  tlie  common  law.  a  municipal  corporation  can  only  take  and 
hold  the  title  to  such  lands  as  its  corporate  necessities  require. 
Nor  do  I  think  it  can  do  indirectly  what  it  cannot  do  directly.  It 
cannot  take  the  title  in  the  name  of  another  in  trust  for  itself, 
and  thus  secure  to  itself  the  avails  of  the  void  purchase.  But  in 
Nebraska  that  rules  doe  not  oljtain.     It  has  been  changed  by 


Root  v.  Shields.  193 

statute.  It  is  provided  that  towns  and  cities  -^  may  grant,  pur- 
chase, hold,  and  receive  property,  both  real  and  personal,  within 
such  town,  and  lease,  sell,  and  dispose  of  the  same  for  the  benefit 
of  the  town."'     In  tliat  view  the  objection  is  not  tenable. 

But  to  what  does  the  objection  go  ?  To  the  trust.  Were  it 
valid,  it  would  avoid  the  trust.  The  sale  itself  and  the  title 
acquired  under  the  sale,  and  the  conveyance  in  pursuance  of  the 
sale,  would  all  still  remain.  The  estate  would  be  vested  in  the 
trustee  just  as  absolutely  as  if  he  had  purchased  for  himself. 
He  might  have  repudiated  his  obligations  to  the  city  as  his  cestui 
que  trust,  and  yet  retain  the  title  to  be  conveyed  and  disposed 
of  effectually  by  him.  It  is  not  necessary  to  inquire  what  his 
rights  would  have  been,  had  he  acquired  them  by  a  conveyance 
expressing  a  void  trust  on  its  face.  Here  we  have  a  conveyance 
to  Monell,  absolute  on  its  face,  the  consideration  for  which,  so 
far  as  this  record  shows,  passes  from  him.  and  not  from  the  city. 
The  trust  is  evidenced  by  an  agreement  in  that  behalf  between  it 
and  him.  He  took  the  title  :  and  he  has  conveyed  to  this  plaintifl'. 
It  is  not  material  to  inquire  whether  the  trust  was  valid  or  not. 
Irrespective  of  that  question,  he  took,  and  he  conveyed  to  this 
plaintiff,  a  good  title. 

It  now  becomes  necessary  to  inquire  whether  the  title  alleged 
by  the  defendants  under  Shields'  entry  was  valid. 

Being  prior  in  time  to  Monell' s  purchase,  it  is  to  be  upheld, 
unless  that  entry  is  affected  by  some  radical  informality.  The 
facts  are  verj^  few  and  simple.     They  are  these  : 

1.  The  city  was  incorporated,  and  these  lands  included  within 
the  corporate  limits,  in  February,  1857. 

2.  Shields  had  no  pre-emption  claim  to  them  prior  to  Septem- 
ber, 18.57. 

3.  The  act  granting  to  him  such  right,  if  any  he  had.  provides 
that  a  party  of  the  character  therein  described  may  pre-empt  any 
portion  of  the  public  lands,  except  such  as  are  included  within 
the  limits  of  an  incorporated  city. 

It  does  not  need  a  single  word  to  show  that  the  law  on  its  face 
does  not  authorize  a  pre-emption  entry  of  the  lands  here  in  ques- 
tion. But  it  is  insisted,  on  behalf  of  th^  defendants,  that  this 
exception  in  the  law  is  inoperative  here.  One  reason  alleged  is, 
that  the  mischiefs  of  such  a  provision  are  so  serious  that  Congress 
could  not  have  intended  the  effects  which  would  follow.  It  is 
said  that  the  State  or  territorial  legislature,  in  which  rests  the 

13 


194  Root  r.  Shields. 

authority  of  incorporating  cities,  miirht.  bj'  nnduh'-  extending 
their  limits,  exclude  large  bodies  of  land  fit  only  for  agricultural- 
purposes  from  the  beneficent  operations  of  the  pre-emption  act, 
and  defeat  the  object  of  Congress. 

We  do  not  stop  to  repeat  what  has  been  said  a  great  many 
times  of  the  duty  of  the  court  when  applying  to  a  case  a  provision 
of  a  statute,  the  terms  of  which  are  clear  and  precise,  and  when 
urged  to  nullif}^  it  by  considerations  of  mischief  growing  out  of  it. 
Here  we  think  the  mischiefs  are  imaginary  rather  than  real.  If 
the  local  legislature  were  so  unwise  as  to  endeavor  to  defeat  the 
purposes  of  a  law  enacted  for  the  benefit  of  its  constituents.  Con- 
gress could  readily,  and  certainly  would  immediately,  remedy  the 
evil.  And  it  is  not  conceivable  that  the  local  legislature  would 
ever  attempt  any  such  thing. 

The  pre-emption  law  was  enacted  for  the  benefit  of  the  settlers 
in  the  new  States  and  territories.     It  offers  to  that  adventurous 
and  worthy  class  of  citizens  the  advantages  of  selecting,  and 
securing  in  advance  of  the  speculator,  the  more  desirable  tracts  in 
the  new  region.     And  the  uniform  policy  of  the  land  department 
is  to  retain  the  public  lands  in  such  a  situation  for  a  long  time, 
in  order  to  give  those  who  are  willing  to  encounter  the  hardships 
and  dangers  of  frontier  life,  an  opportunity  to  make  selections 
and  to  settle  upon  them  and  make  payment  for  them  at  the  mini- 
mum price,  before  any  portions  of  such  lands  are  offered  to  pur- 
chasers in  general.     Accordingly,  such  settlers  constitute  almost 
the  whole  body  of  citizens  who  settle  in  such  regions.     It  is  not 
conceivable  that  they  would  deliberately  devise  a  measure  which 
would  defeat  an  enactment  by  which  valuable  privileges  are  secured 
to  themselves,  and  by  which  the  region  of  country  in  which  they 
live  would  be  populated  and  improved.     Precisely  this  agreement 
was  urged  in  the  case  of  Gilmun  v.  Philadelphia,  3  Wallace,  713, 
731 .     It  was  held  utenable  there,  for  the  reasons  indicated  above. 
It  is  insisted  that  the  clause  in  the  law  containing  this  excep- 
tion is  repealed  by  the  provision  in  the  act  organizing  the  territory, 
that  its  legislature  should  not  have  authority  to  interfere  with  the 
primary  disposal  of  the  soil.     It  is  said,  that  if  the  territorial 
legislature    can,    by   iiftiorporating   a   city,  withdraw   the    lands 
included  within  its  limits  from  the  privileges  of  pre-emption,  it 
may,  and  it  does,  thereby  interfere  with  the  primary  disposal  of 
the  soil.     This  argument  is  specious  rather  than  sound. 

If  the  provision  of  the  organic  act  has  the  effect  claimed,  it  is 


Root  v.  Shields.  195 

because  it  repeals  the  provision  of  the  pre-emption  law  by  impli- 
cation. Between  these  two  })rovisions  there  is  no  such  repugnance 
that  they  cannot  both  stand.  So  that  we  cannot  imply  a  repeal 
of  the  former  by  the  latter.  United  States  v.  Ten  Thousand  Ckjars, 
ante. 

This  provision  in  the  act  is  the  same  as  is  found  in  most  of  the 
acts  admitting  new  States  into  the  Union.  It  is  intended  to 
withdraw  from  tlie  local  legislatures  some  special  matter  of  general 
concernment,  and  indicates  a  settled  policy  in  respect  thereof. 

In  1802,  in  the  act  admitting  Louisiana,  the  words  used  were, 
"  They."  that  is  the  people  of  the  new  State.  "  forever  disclaim 
all  right  or  title  to  the  waste  or  unappropriated  lands  lying  within 
the  said  territory  ;  and  the  same  shall  be  and  remain  at  the  sole 
and  entire  disposition  of  the  United  States."  (2  Stats,  at  Large, 
642.)  And  the  \QYy  phrase  here  employed  by  Congress  appears 
in  the  act  for  the  admission  of  Michigan,  passed  on  the  loth  of 
June.  1836  (5  Stats,  at  Large,  59).  and  will  be  found  in  all  similar 
acts  since  passed.  Having  its  origin  in  some  reason  of  general 
application,  it  has  been  felt  as  a  necessary,  and  adopted  as  an 
approved,  provision  in  the  legislation  of  Congress. 

One  or  two  considerations  will  disclose  this. 

To  incorporate  a  city  located  on  the  public  lands,  however  con- 
tracted its  limits,  is  to  withdraw  from  the  operation  of  the  pre- 
emption law  lands  included  within  them.  If  including  public 
lands  within  the  limits  of  an  incorporate  city  is  an  interference 
with  the  primary  disposal  of  the  soil,  then  the  new  States  cannot 
pass  an  act  incorporating  a  city  located  on  the  public  lands.  But 
this  power  in  the  States  was  never  denied.  It  lias  always  been 
exercised  by  them  exclusively  of  the  federal  government.  Indeed, 
the  legislation  of  Congress  concedes  the  power. 

So  it  cannot  be  that  incorporating  a  city  on  the  public  lands 
interferes  with  the  primary-  disposal  of  the  soil,  even  though  it  has 
the  effect  to  withdraw  the  lands  within  its  limits  from  the  operation 
of  the  pre-emption  law. 

I  have  thus  far  spoken  of  the  power  of  States,  and  am  reminded 
that  the  charter  of  Omaha  was  enacted  by  a  territor3\  But  we 
have  already  seeii  that  the  provision  has  its  place  in  acts  admit- 
ting,States,  as  well  as  in  acts  organizing  territories  :  and  that  it  is 
universally  used,  on  account  of  a  general  policy.  So  the  argu- 
ment in  the  one  case  is  of  equal  force  in  the  other. 

An  act  incorporating  a  city  which  is  located  on  the  public  lands. 


196  Root  v.  Shields. 

does  not,  by  its  own  force,  withdraw  lands  from  pre-emption. 
That  effect  is  produced  by  the  congressional  i)rovision.  and  is 
remote,  indirect,  and  only  consequential. 

These  obvious  considerations  show  very  clearly  that  when  Con- 
gress provided  that  the  territory  should  not  interfere  with  the 
primary  disposal  of  the  soil,  it  did  not  intend  to  deny  the  authority 
to  incorporate  a  city  on  the  piil)lic  lands. 

But  this  exception  in  the  ]jre-emption  law  was  not  inserted 
with  any  view  whatever  to  the  extent  of  the  corporate  limits  of  a 
city,  whether  they  should  be  reasonable  or  unreasonable.  It  was 
assumed  that  there  was  a  class  of  lands  which  the  local  authorities 
would  regard  as  more  desirable  for  town  occupation  than  for 
agricultural  use. 

Without  any  inquiry  as  to  the  correctness  of  the  opinion  on 
that  subject  of  those  who  were  on  the  ground,  and  without  con- 
venient means  of  answering  such  an  inquiry.  Congress  deemed 
the  short  waj^  the  best  wa3%  to  exclude  them  all  from  the  operation 
of  the  act  by  a  general  rule. 

And  when,  with  such  a  provision  of  statute  before  it.  and  with 
such  obvious  reasons  for  enacting  it.  Congress  proceeded  to  organ- 
ize the  territory  with  the  clause  which  is  before  us,  it  is  reasonable 
to  suppose  that  it  intended  to  repeal  or  modify  the  former  rule. 

Tlie  clause  in  the  organic  act  was  intended  to  forbid  the  terri- 
torial legislature  passing  any  law  to  dispose  of  the  public  lands 
as  if  on  its  own  authority,  or  intermeddling  with  the  mode  by 
which  the  general  government  should  dispose  of  them,  or  assum- 
ing any  authority  or  jurisdiction  in  respect  of  that  business.  It 
was  not  intended  to  deny  authority  to  pass  a  law  which  the  terri- 
tory alone  could  intelligently  enact. 

Clearly  the  position  of  the  defendants  on  this  ground  is  untenable. 

But  we  are  met  by  still  another  reason  against  giving  effect  to 
the  exception  in  the  pre-emption  law.  It  is,  that  the  act  of  May  23, 
1844  (5  Statutes  at  Large,  657).  restrict  the  corporate  limits  of 
a  city  to  320  acres. 

All  that  that  act  provides,  so  far  as  the  matter  here  in  hand  is 
concerned,  is  that  any  portion  of  the  public  land  actually  occu- 
pied as  a  town  site,  may,  to  the  extent  of  320  acres,  be.  by  the 
corporate  authorities,  entered  at  the  proper  land  office,  and  at  the 
minimum  price,  in  trust  for  the  occupants.  Prior  to  the  passage 
of  that  act  there  was  no  mode  provided  for  the  occui)ants  of  such 
towns  acquiring  their  titles  except  at  the  public  sale. 


Root  v.  Shields.  197" 

The  public  sales  of  lands  are  often  delaj^ed  long  after  a  large 
section  of  territory  has  been  opened  for  settlement. 

This  is  in  order  to  enable  settlers  to  enjoy  the  preference  in 
acquiring  the  more  valuable  tracts.  And  these  sales  are  made  in 
parcels  of  not  less  than  forty  acres  each,  and  therefore  do  not 
afford  an  appropriate  means  to  claimants  of  small  lots  for 
acquiring  title  thereto.  Congress  accordingly  provided  this 
mode  of  relief  to  such  parties,  expresslj^  restricting  the  advan- 
tages which  it  granted  to  lands  actvially  occupied,  and  to  320 
acres.  The  statns  of  the  remaining  lands  within  the  corporate 
limits  was  untouched.  They  could  not  be  entered  under  this  act, 
nor  could  they  any  more  after  than  before  the  passage  of  it.  be 
pre-empted  by  an  individual.  The  title  to  them  could  only  be 
acquired  at  public  sale. 

No  one  of  the  reasons  urged  on  behalf  of  the  defendants  against 
giving  effect  here  to  the  clear  and  express  provision  of  the  law, 
that  the  lands  within  the  limits  of  an  incorporated  city  should  not 
be  subject  to  pre-emption,  are  tenal>le. 

But  if  we  look  to  the  policy  of  the  provision,  we  are  led  to  the 
same  conclusion. 

Whenever  a  town  springs  up  upon  the  ])ublic  lands,  adjoining 
lands  appreciate  in  value.  The  reasons  are  obvious,  and  the  fact 
is  well  known.  So  too  when  a  railroad  is  built  through  a  section 
of  country,  the  same  result  follows.  So  too  in  respect  of  lands 
which  have  been  reserved  for  the  use  of  an  Indian  tribe,  when  the 
Indian  title  is  extinguished,  the  same  may  be  said.  While  such 
lands  are  held  as  a  reserve,  population  flows  up  to  their  boun- 
daries and  is  there  staid  :  it  of  course  constantly  grows  more  and 
more  dense,  so  that  when  the  reserve  is  vacated,  the  lands  have 
increased  in  value,  and  are  always  eagerly  sought  after.  The 
other  classes  of  lands  mentioned  in  the  exception,  as  for  instance 
those  on  which  are  situated  any  known  saline  or  mines,  have  some 
intrinsic  value  above  others.  ^ 

Now  all  these  classes  of  lands  are  excepted  fi'om  the  operation 
of  the  act.  and  for  the  one  common  and  obvious  reason,  that  being 
of  special  value,  the  government  desires  to  retain  the  advantage 
of  their  appreciation,  and  is  unwilling  that  any  individual,  because 
of  a  priority  of  settlement,  which  certainly  can  be  of  but  brief 
duration,  should,  to  the  exclusion  of  others  equally  meritorious, 
reap  benefits  which  he  did  not  sow. 

This  is  as  true  of  lands  within  the  limits  of  an  incorporated 


198  Root  v.  Shields. 

city,  as  of  any  other  of  the  classes  mentioned  in  tlie  exception.  And 
it  is  no  answer  to  this  view  to  suggest  that  lands  thus  excluded 
from  pre-emption  are  not  occupied  for  a  town.  They  are  included 
within  its  limits  by  the  local  legislature,  because  likely  to  be 
required  for  such  occupancy.  And  it  is  this  fact,  and  their  prox- 
imitj'^  to  the  town,  which  gives  them  special  value. 

This  very  circumstance  of  tlieir  situation  brings  them  into  the 
<!lasses  of  lands  mentioned. 

The  lands  were  not.  at  the  time  Shields  first  asserted  a  pre-emp- 
tion claim  thereto,  subject  to  entry  under  the  act.  and  the  entry 
which  he  made  was  illegal  and  void. 

It  is  also  insisted  against  the  validity  of  this  entry,  that  Shields 
personally  was  within  one  of  tlie  exceptions  which  relate  to  the 
character  of  the  pre-emption  claimant,  and  was  therefore  incapable 
of  making  an}"  entry  under  the  act. 

It  is  alleged  that  he  was  the  owner  of  320  acres  of  land.  This 
is  denied  very  positively  in  the  answer.  The  proof  consists  of 
many  circumstances  tending,  it  is  claimed,  to  establish  the  fact. 
Perhaps  so.     But  against  the  denial  it  is  not  conclusive. 

Again,  the  entry  is  assailed  on  the  alleged  ground  that  he 
entered  into  a  contract  with  Test,  by  which  the  title  which  he 
should  acquire  should  inure  to  Test's  benefit.  It  is  insisted  that 
Shields  repurchased  the  propert}^  from  Beesom  with  money  fur- 
nished to  him  by  Test  for  the  purpose,  and  that  circumstance, 
taken  in  connection  with  the  further  fact  that  he  conveyed  an 
undivided  half  of  the  quarter-secticm  to  Test,  the  second  day 
after  he  made  his  entry,  support  the  allegation.  But  we  have 
here,  too,  the  positive  denial  in  the  answer,  whicli  we  think  is  not 
overcome  by  the  plaintiff's  proofs.  It  is  unnecessary  to  decide 
these  questions.  Let  it  be  understood  that  we  place  our  decree 
upon  the  ground  that  the  land  was  not  subject  to  pre-emption, 
and  that  for  that  reason  the  entry  made  by  Shields  was  void. 

It  is  further  insisted  on  behalf  of  the  defendants,  that  they  are 
bona  fide  purchasers,  and  tliat  they,  as  such,  are  entitled  to  the 
protection  of  the  court.  1  think  it  pretty  clear  that  some  at  least 
of  these  defendants  purchased  and  paid  their  money  without  any 
knowledge  in  fact  of  any  defect  in  the  title.  Yet  they  are  not 
bona  fide  purchasers,  for  a  valuable  consideration,  without  notice, 
in  the  sense  in  which  the  terms  are  employed  in  courts  of  equity. 
And  this  for  several  reasons.     They  all  purchased  before  the  issue 


Root  v.  Shields.  199 

of  the  patent.     The  more  meritorious  purchased  after  the  entry 
had  been  assailed,  and  decided  airainst  by  the  land  office. 

But  that  is  a  circumstance  not  material  to  this  consideration. 
Until  the  issue  of  the  patent,  the  legal  title  remaind  in  the  United 
States.  Had  his  entry  been  valid.  Shields  would  have  taken  only 
an  equity.  His  grantees  took  only  an  equity.  They  did  not 
acquire  the  legal  title.  And  in  order  to  establish  in  himself  the 
character  of  a  bona  fide  purchaser,  so  as  to  be  entitled  to  the  protec- 
tion of  chancery,  a  party  must  show  that,  in  his  purchase,  and  by 
the  conveyance  to  him,  he  acquired  the  legal  title.  If  lie  have  but 
an  equity,  it  is  overreached  by  the  better  equity  of  his  adversary. 

Besides,  these  defendants  were  bound  to  know  the  law.  They 
were  bound  to  know  that  tliese  lands  were  within  the  limits  of  the* 
city  ;  and  that  lands  within  the  limits  of  a  city  cannot  be  pre-emp- 
ted. Knowing  these  facts,  they  knew  that  Shields'  entry  was  void. 
They  did  not  purchase  without  notice. 

Again,  the  defect  in  the  title  was  a  legal  defect  :  it  was  a  radi- 
cal defect.  It  was  as  if  no  entry  had  ever  been  made.  By  it 
Shields  did  not  take  even  an  equity.  After  he  had  gone  through 
the  process  of  making  the  entry,  after  he  received  the  patent 
certificate,  Shields  had  no  more  right,  or  title,  or  interest  in  the 
land  than  he  had  before. 

And  as  he  had  none,  he  could  convey  no  interest  in  the  land. 
By  the  deed  which  he  made,  and  by  the  successive  deeds  which 
they  received,  his  grantees  took  no  more  than  he  had.  which  was 
nothing  at  all. 

In  order  to  the  maintenance  of  this  defence,  there  must  subsist 
an  interest  which  the  law  approves  and  will  support,  and  we  have 
shown  in  this  opinion  that  that  never  existed. 

There  must  be  a  decree  according  to  the  prayer  of  the  bill. 

Decree  accordingly. 

As  to  form  of  decree  to  be  entered  in  such  a  case,  see  Silvei-  v.  Ladd,  7 
Wallace-.  219. 

1.  Also,  see  Eadey  v.  Kellom,  14  Wall  ,  27iJ. 

A  third  party  cannot  raise,  in  ejectment,  the  question  of  fraud  as 
between  the  grantor  and  grantee,  and  thus  look  beyond  the  patent  or 
grant.    Fiehlx.  Seabunj,  19  Howard.  323  ;  Burgess  v.  Graij,  16  Howard,  48. 

One  in  possession  without  title  cannot  show  that  the  plaintiff's  title 
was  obtained  by  fraud  or  mistake,  as  a  title  so  obtained  is  not  void,  but 
voidable.  Hunter  v.  Hemphdh  <>  Mo.,  lOG  ;  MiiclieU  v.  rarker.  2.5  Mo..  31  ; 
Lee  V.  tarkcr.  25  Mo.,  3->. 


200  Kelley  v.  Wallace. 

2.  An  illegal  entry  i-  no  entry,  and  the  doctrine  of  notice  in  such  cases 
has  no  application.  Notice  of  an  illegal  entry  does  not  make  it  legal. 
Keir  V.  3Iack.  1  Ohio,  IBl  ;  Mc Arthur  \.  I'hoelms,  2  Ohio,  4l(i. 

The  purchaser  of  land  before  the  patent  has  issued,  takes  the  title 
subject  to  the  power  of  the  commissioner  to  cancel  the  entry  for  the 
same  causes,  as  though  the  title  to  the  land  remained  in  the  purchaser 
from  the  government.  EamlaU  v.  Ederf,  7  Minn  ,  4o0  ;  Gray  v.  Storklov, 
8  Minn.,  rrl9. 

Subsequent  purchasers  are  considered  as  acquiring  the  interest  of  the 
person  making  the  entry,  so  that  purchasers  under  conflicting  entries 
are  considered  as  purchasing  under  distinct  riglits,  in  wliicli  case  the  rule 
as  to  innocent  purchasers  does  not  apply.     Kerr  v.  Waitii,  <!  Wheaton,  0.50. 


James  Kellky  r.  Daxiel  Wallace  et  al. 
Supreme  Court  of  Minnesota,  January  Term,  1869.— 14  Minnesota,  2:^0. 
(This  case  was  argued  and  determined  at  the  July  Term.  1868.— Rep.) 

An  allegation  in  an  answer  that  certain  acts,  in  themselves  right,  were 
against  the  provisions  of  an  act  of  Congress  and  in  fraud  of  the 
plaintiff,  is  an  allegation  of  a  legal  conclusion,  and  not  an  allegation 
that  the  acts  were  fraudulently  done. 

In  an  action  to  cancel  and  set  aside  a  certificate  of  entry  of  public  lands 
and  the  patent  issued  thereon,  if  the  complaint  does  not  allege 
fraud,  no  evidence  of  fraud  can  be  received  on  the  trial. 

The  sufficiency  of  certain  evidence  to  sustain  the  material  findings  of  a 
referee  considered  and  determined. 

To  constitue  a  valid  right  of  pre-emption  under  the  act  of  Congress  of 
1841,  the  law  requires  a  personal  settlement  upon  the  land  by  the 
claimant,  followed  by  occupancy  of  the  land  as  the  home  of  the 
settler,  the  erection  of  a  dwelling-hou?  e  thereon,  and  the  cultivation 
or  improvement  of  tiieland.  VVhai  shall  constitute  such  occupancy 
or  improvement  must  depend  upon  the  circumstances  of  each  case. 
The  general  rule  is,  that  the  settlement  must  be  such  as  to  show 
under  all  the  circumstances  a  Lona  file  intention  on  the  part  of  the 
settler  to  occupy  and  improve  the  premises  as  his  home.i 

The  sufficiency  of  certain  evidence  to  sustain  the  conclusion  that  in  this 
case  there  was  a  brma  fide  settlement  and  occupancy  of  tlie  land 
under  the  act  of  Congress  of  1841,  and  that  there  was  no  abandon- 
ment of  the  claim  by  the  pre-emptor,  considered  and  determined. 

A  certified  copy  of  a  letter  on  file  in  the  office  of  the  (  ommissioner  of 
the  General  Land  Office,  if  admissible  to  prove  the  contents  of  the 
original  letter,  must  be  authenticated  in  the  manner  prescribed  by 
the  statutes  of  our  State.     Gen-  Stat  ,  ch.  7:5,  sec  -^S.  p.  ."•27.- 


Kelley  v.  Wallace.  201 

Kelley  and  Wallace  were  contestants  for  the  right  to  pre-empt 
a  certain  forty-acre  tract  of  land.  Tlie  local  land  officers  decided 
in  favor  of  Wallace,  and  their  decision  was  afflnned  at  AVashing- 
ton,  both  by  the  Commissioner  of  the  General  Land  Office  and 
the  Secretary  of  the  Interior.  Kelley  brings  this  action  in  the 
District  Court  for  Blue  Earth  County,  to  have  the  duplicate  and 
patent  which  were  issued  to  Wallace  canceled,  and  for  an  order 
or  direction  of  the  court  requiring  the  local  land  officers  to 
receive  payment  for  said  land  from  him.  and  to  issue  to  him  the 
proper  receipt  or  duplicate  therefor.  He  joins  the* said  land 
officers  as  parties  defendants  with  Wallace.  The  cause  was  tried 
before  a  referee,  who  found  in  favor  of  the  defendants.  The 
plaintifl"  made  a  motion  to  set  aside  the  report  of  the  referee,  and 
for  a  new  trial,  which  was  denied,  and  he  appeals  from  the  order 
denying  the  same  to  this  court.  A  sufficient  statement  of  the 
pleadings,  evidence,  exceptions  taken,  and  findings  of  the  referee, 
for  a  full  understanding  of  the  questions  raised  and  decided, 
appears  in  the  opinion  of  the  court. 

Francis  Beveridge  for  appellant. 

Biick  &  Freeman  for  respondent. 

By  the  Court,  IMcMillan,  J. : 

It  appears  that  the  defendant,  Wallace,  commenced  a  settle- 
ment upon  the  southwest  quarter  of  section  25,  T.  107,  R.  25,  on 
the  6th  day  of  June.  1863.  pursuant  to  the  pre-emption  law  approved 
September  4th,  1841,  and  on  the  same  day  filed  his  declaratory 
statement  in  the  proper  land  office  ;  that  on  the  5th  of  July,  1863, 
the  plaintiff  commenced  a  settlement  on  certain  lands,  embracing 
a  portion  of  the  land  claimed  by  the  defendant,  namely,  the  south- 
east quarter  of  the  southwest  quarter  of  section  25  aforesaid,  the 
land  now  in  controversy.  The  parties  contested  their  rights 
respectively  to  enter  this  land  before  the  local  land  office,  which 
resulted  in  a  decision  by  the  land  officers  in  favor  of  the  defendant 
Wallace,  and  on  an  appeal  to  the  Commissioner  of  the  General 
Land  Office  the  decision  was  affirmed,  which  decision  was  also 
affirmed  on  appeal  to  the  Secretary  of  the  Interior. 

This  action  is  brought  to  cancel  and  set  aside  the  entry  of 
Wallace  and  the  patent  issued  thereon. 

The  cause  was  tried  by  a  referee,  and  resulted  in  a  finding  for 
the  defendant,  whereupon  the  plaintift'  moved  the  court  to  set 
aside  the  report  of  the  referee,  and  for  a  new  trial,  which  was 


202  Kelley  v.  Wallace. 

denied.    From  tlie  order  denying  tliis  motion  the  plaintiff  appealed 
to  this  court. 

The  api)Pllant  makes  several  points  on  the  appeal,  which  we 
proceed  to  consider. 

The  first  and  fourtli  points  will  properly  be  disposed  of  together  : 

-1.  The  referee  erred  in  finding  that  the  complaint  does  not 
allege  any  fraud  upon  the  part  of  the  respondent  in  procuring  and 
the  land  officers  in  issuing  the  patent  as  against  the  phuntiff. 
The  complaint  does  allege  fraud." 

••  4.  The  referee  erred  in  excluding  evidence  that  tended  to  show 
fraud  on  the  part  of  the  defendant." 

From  an  inspection  of  the  complaint  we  think  it  clearly  appears 
that  there  is  no  fraudulent  intent  charged  against  Wallace  or  the 
land  officers  in  any  part  of  their  proceedings. 

The  allegation  in  the  complaint.  "  that  the  decision  of  the  register 
and  receiver  and  the  confirmation  thereof  by  the  Commissioner  of 
the  General  Land  Office  and  the  Secretary  of  the  Interior,  and 
the  issuing  of  the  duplicate  or  receipt  for  the  purchase-money  of 
said  land  to  the  said  defendant  Wallace  by  said  defendants  Swift 
and  Douner.  was  against  the  provisions  of  said  act  of  Congress 
and  in  fraud  of  the  plaintiff."  is  not  an  allegation  that  the  defend- 
ants, or  either  of  them,  acted  fraudulently  in  any  part  of  the  pro- 
ceedings referred  to  ;  and  the  allegation  that  the  decision  was  • 
against  the  provisions  of  the  act  of  Congress  is  not  an  allegation 
that  it  was  fraudulent. 

It  appears  in  the  case  that  on  the  trial  objection  was  made  "  to 
all  parts  of  testimony  that  tend  to  prove  fraud  on  part  of  de- 
fendant, as  incompetent  and  inadmissible  evidence  under  the 
pleadings,"  and  that  tlie  plaintiff  as  not  allowed  to  amend  his 
pleadings.  Whether  any  such  evidence  was  offered  or  passed 
upon  does  not  appear :  but  if  it  was.  we  think  the  complaint  does 
not  allege  fraud,  and  that  such  evidence  would  not.be  admissible. 

The  second  and  third  points  of  the  appellant,  and  which  will 
also  be  disposed  of  together,  are  : 

"  Second.  The  referee  erred  in  finding  as  follows  :  '  We  think  a 
sufficient  reason  for  his  (Wallace's)  not  following  up  his  claim  to 
the  land,  as  made  in  June,  1863,  is  found  in  the  violence  that 
was  used  and  threatened  both  him  and  his  improvements,  as  well 
as  the  condition  of  his  family  during  most  of  the  time  that  inter- 
vened from  the  summer  of  1863  to  June,  1864.' " 


Kelley  v.  Wallace.  203 

••  ThiriL  The  referee  erred  in  fiiidiiiir  tlial  the  facts  do  not  sliow 
an  abandonment  by  Wallace  of  the  claim  in  ({uestion."" 

The  referee  finds  as  facts  upon  which  these  conclusions  are 
based  :  "  That  AYallace  in  good  faith  made  his  claim  to  said  south- 
west quarter  of  section  25.  Town.  107.  Rangre  25.  on  the  6th  of 
June.  1863.  and  that  in  the  same  month  he  l)uilt  a  shantv  on  the 
same,  hauled  some  lnml)er  on  said  claim,  and  dug  or  cleaned  out 
a  spring  on  the  land,  and  that  within  a  few  days  after  this  the 
lumber  that  AVallace  had  brought  on  the  land  with  a  view  of  build- 
ing thereof  was,  without  the  knowledge  (consent)  of  Wallace, 
hauled  away  by  said  plaintiff."  It  further  appears  that  between  the 
27th  and  the  30th  of  June,  1863,  the  shanty  that  Wallace  had  put 
up  was  also  removed  by  some  one,  but  by  whom  does  not  appear. 
It  is  also  shown  that  within  a  few  days  after  making  his  claim. 
Wallace  bought  a  house  with  the  intention  of  removing  the  house 
on  to  his  claim,  but  that  he  did  not  do  so.  for  the  reason  that  he 
feared  it  would  be  destroyed  by  violence. 

And  the  language  of  plaintiff  to  Wallace  seems  to  afford  a 
reasonable  ground  for  this  conclusion,  for  said  plaintiff  testifies  : 
'•That  some  time  in  the  month  of  June.  1863.  he  told  Wallace 
that  he  (plaintiff)  would  not  allow  any  one  to  build  on  his  claim." 
And  the  testimon^^  shows  that  angry  and  violent  words  passed 
between  plaintiff*  and  Wallace  as  to  their  claims  to  said  lands, 
and  there  is  testimony  tending  to  show  that  plaintiff'  and  others 
in  concert  with  him  threatened  to  use  force  to  eject  Wallace  from 
his  claim.  It  is  proven  that  as  soon  as  Wallace  learned  that  his 
shanty  had  been  removed  from  his  claim  he  posted  up  notices 
offering  a  reward  for  the  discovery  of  the  person  who  had  done 
the  act.  It  is  also  shown  that  Wallace,  at  and  about  the  time  of 
making  these  improvements,  intended  to  remove  his  family  (then 
residing  in  Mankato)  to  said  claim,  but  on  account  of  the  ill  health 
of  his  wife  he  was  prevented  from  doing  so.  It  is  also  shown 
that  there  was  no  physician  at  the  agency  in  1863.  This  illness 
of  his  wife  continued  through  the  summer  and  fall  of  1863,  so 
that,  as  Wallace  believed,  she  was  not  able  to  be  removed  such  a 
distance.  And  the  testimony  of  the  family  physician  shows  that 
in  the  spring  of  1864  the  wife  of  AVallace  was  suffering  with  the 
disease  of  which  she  shortly  after  died.  AVallace,  deeming  it^ 
unsafe  to  remove  his  wife,  did  not  move  with  his  family  to  the 
claim  until  the  8th  of  June.  1864.  after  which  time  Wallace  and 
family  continued  to  reside  on  the  claim  as   their  home  until   the 


204  Kelley  v.  Wallace. 

(lay  of  January,  18G5,  when  his  wife  died.     It  is  also  shown 


that  Wallace's  family  consisted  in  part  of  several  small  children, 
one  born  in  July.  1H63.  and  another  not  then  three  years  old. 
The  evidence  shows  that  Wallace  went  out  to  his  claim  in  Novem- 
ber, 1863,  and  again  in  March,  1864,  but  it  does  not  appear  how 
long  he  remained  on  the  claim  at  either  of  these  times.  In  May, 
1864,  AVallace  dug  a  cellar,  or  part  of  a  cellar,  on  his  claim,  and 
in  June  or  July,  1864.  lie  broke  ten  or  fifteen  acres  of  land  thereon  ; 
and,  as  already  stated,  in  June,  1864,  moved  with  his  family  on 
the  claim,  and  remained  there  until  the  death  of  his  wife." 

We  think  there  is  evidence  sufficient  to  sustain  this  finding,  so 
far  as  the  facts  material  to  the  action  are  concerned,  and  that  the 
conclusions  of  law  by  the  referee  are  substantially  correct. 

From  the  fact  that  Wallace  immediately  upon  his  settlement 
cleared  out  the  spring,  and,  as  his  testimony  shows,  hauled  lumber 
on  to  the  land  to  build  within  a  week  thereafter,  and  actually 
built  a  house  or  shanty  on  tlie  land  during  the  same  month,  it 
would  seem  to  be  a  reasonable  conclusion  that  he  was  preparing 
to  occupy  the  same  with  his  family.  If  he  had  not  been  inter- 
rupted and  obstructed  by  the  plaintiff  Kelley  and  others,  by  threats 
of  violence  and  the  removal  of  his  house,  notwithstanding  the 
ill  health  of  his  wife,  his  purpose  might -have  been  accomplished. 

To  have  removed  his  wife  and  family  to  the  land  without  a 
place  of  shelter  for  them,  when  his  wife  was  in  such  feeble  health, 
and  there  was  no  physician  at  the  agency,  would  render  it  almost 
certain  that  fatal  consequences  would  ensue  from  her  removal  to 
this  scene  of  strife  and  violence.  As  it  was.  it  appears  that 
Wallace,  having  during  the  month  of  May  erected  a  second  dwell- 
ing, removed  his  family  into  it  on  the  8th  of  June,  1864,  where, 
on  the  17th  of  January,  1865,  his  wife  died  of  the  disease  from 
which,  according  to  the  testimony  of  her  physician,  she  had  long 
been  suffering. 

To  constitute  a  valid  right  of  pre-emption  under  the  act  of  1841, 
the  spirit  and  terms  of  the  law  required  a  personal  settlement  by 
the  claimant  upon  the  land,  and  the  original  settlement  must  be 
followed  by  occupancy  of  the  land  as  the  liome  of  the  settler,  the 
erection  of  a  dwelling-house  thereon,  and  the  cultivation  or  im- 
,  proveraent  of  the  land  ;  Init  wliat  shall  constitute  occupancy  or 
improvement  must  depend  upon  the  facts  of  each  case,  and  no 
absolute  rule  can  be  laid  down  to  govern  all  cases. 

In  the  case  of  a  married  man    the  settlement  mav  be  made 


Kelley  v.  Wallace.  205 

originally  without  the   presence  of  his  family,  and  the  time  when 
the  family  must  follow  may  be  different  in  different  cases. 

The  only  rule  which  can  be  laid  down  is,  that  the*  settlement 
and  occupancy  must,  under  all  the  circumstances,  be  reasonable  as 
to  the  time  and  manner,  and  show  a  bona  fide  intention  on  the 
part  of  the  settler  to  occupy  and  improve  the  premises. 

In  this  case  the  settlement  made  by  the  defendant.  Wallace, 
was  prosecuted  by  immediate  efforts  to  provide  a  i)lace  of  shelter 
for  his  family.  In  this  he  was  obstructed  by  threats  and  violence 
until  a  period  when  he  could  not.  with  reasonable  safety  to  his 
wife,  remove  his  family  to  the  land  ;  nor  could  he  at  ai\v  time 
previous  to  the  spring  of  1864  remain  there  ;  yet  in  November, 
1863,  he  asserted  his  occupancy  by  going  to  his  claim,  and  in 
March,  1864,  commenced  and  finished  his  second  dwelling-house. 

We  think,  under  all  the  circumstances,  there  is  sufficient  evidence 
to  justify  the  conclusion  that  there  was  a  bona  fide  settlement  and 
occupancy  of  the  land  by  Wallace,  and  that  his  claim  was  not 
abandoned.  The  copy  of  a  letter  purporting  to  have  been  written 
by  Wallace  to  Kelley,  dated  Mankato,  May  26.  1864.  certified  by 
the  Commissioner  of  the  General  Land  Office  to  be  a  true  and 
literal  exemplification  of  the  original  on  file  in  his  office,  was 
properly  excluded. 

Whether  a  certified  copy  of  the  letter,  properly  authenticjited, 
would  be  admissible,  we  do  not  decide.  In  this  instance  the 
certificate  of  the  commissioner  did  not  conform  to  the  require- 
ments of  the  statute  of  our  State,  and  for  that  reason  the  copy 
was  not  admissible.  Gen.  Stat.,  chap.  73.  sec.  58,  p.  527.  The 
order  of  the  District  Court  denying  the  motion  to  set  aside  the 
report  of  the  referee  and  for  a  new  trial  was  not  erroneous. 

Judgment  affirmed. 


1.  Merely  Jivuig  on  public  laud  does  not  ffive  a  pre-emption  right. 
Weaver  V.  FaircMhh  -"lO  Cal  ,  3G0 ;   FUzpalnrk  x.  Dnhnix,  2  Sawyer,  434. 

■1.  The  mode  of  authenticating  the  reeorlsof  the  land  department  is 
governed  by  the  laws  of  the  United  States,  and  not  by  the  statutes  of 
this  State.     Gilmanv.  h'iopelte,  IS  Mich..  14."). 

The  person  setting  up  a  .superior  right  of  pre-emption  against  a  patent 
must  .show  that  he  was  entitled  to  the  preference,  and  that  he  made,  or 
offered  to  make,  proof  and  payment  before  the  register  and  receiver. 
Feindck  V.  Gill,  38  Mo.,  510;  Dunn  v.  Schneider,  20  Wis.,  o09;  MahoHey  v. 
Van  Wiuklr,  33  Cal.,  44S  ;  (^uiun  v.  Kenyan,  38  Cal.,  499;  Sacramento 
JSaviiigs  Bank  v.  Haynes,  50  Cal.,  195. 


206  Stalnaker  v.  Morrison. 

Samuel  Stalnakkk.  plnintiti'  in  error,  v.  John  Mokuiso^n,  defend- 
ant in  error. 

Supreme  Court  of  Nebrask:i  —October  'I'erm.  1877.— (!  jSrebra.«ka,  363. 

1.  Public  Lands  of  the  United  States. —  The  even-numbered  sec- 

tions along  the  line  of  the  Cnion  Pacific  Railroad  and  its  branches 
may  be  settled  upon  and  entered  under  the  provisions  of  the  pre- 
emption and  homestead  laws,  but  are  not  subject  to  private  entry. 

2.  U.  P.  K.  R.;  B.  and  M.  K.  R.— I'he  B.  and  M.  K.  R.  extension  is  one 

of  the  branches  of  the  Union  Pacific  R.  R.,  and  the  lands  within  the 
limits  of  the  grant  to  tliat  corporation  are  not  subject  to  private 
entry. 

3.  Pke-emption . — It  is  only  in  cases  where  lands  are  subject  to  private 

entry  at  the  date  of  tsdtleiiwnt  that  a  pre-emptor  must  make  proof  and 
payment  within  a  year  from  tlie  date  of  settlement. i 
i. — When  lands  have  been  o tiered  at  public  sale,  and  ^thereby  become 
subject  to  private  entry,  if  they  are  afterwards  included  within  the 
boundaries  of  a  grant  to  a  railroad  company,  and  are  thereby  with- 
drawn from  private  entry,  and  subject  to  settlement  and  entry  under 
the  pre-emption  and  liomestead  laws  exclusively,  they  are  to  be 
treated  in  all  respects  like  unoft'ered  lands. 

5.  ,\  party  pre-empting  any  portion  of  such  lands  lias  thirty  months 

after  tlic  date  of  filing  his  declaratory  statement,  in  which  to  make 
final  proof  and  paj'  for  the  same. 

6.  The  object  of  the  guards  thrown  around  the  privilege  of  pre-emption 

by  the  law,  is  to  secure  on  the  public  lands  actual  permanent  settlers. 

7.  Equity   .Jurisdiction. — The  jurisdiction  of  a   court   of  equity  to 

determine  the  rights  of  parties  iri  case  of  conflicting  claims  to  a  tract 
of  land  is  undoubted. 

8.  Ejectment;  Defences. — Under  the  code,  an  equitable  defence  may 

be  set  up  in  an  action  of  ejectment.  ■ 


Error  from  the  District  Court  of  Lancaster  County,  to  which 
the  cause  was  taken  by  change  of  venue  from  Cass  county.  Tried 
below  before  Pond.  J. 

The  facts  are  stated  in  the  opinion. 

Cobb,  Murquett,  and  Moore,  for  plaintiff  in  error,  cited  sec.  15, 
Stats,  at  Large,  39,  chap,  xx,  Rev.  Stats.  U.  S.,  418  ;  sees.  2,264, 
2,267;  Johnson  v.  Towsley,  13  Wall.,  72;  Shepley  v.  Cowan,  91 
U.  S.,  330. 

Lamb,  Billinrislpy,  and  Lam.bertson,  for  defendant  in  error, 
cited  Lester's  Land  Laws,  vol.  1.  pages  34,  48,  234,  278.  Act 
July  7.  1870.  U.  S.  Stats,  at  Large.  188. 


Stalnaker  v.  Morrison.  207 

Max^\tell,  J. 

On  the  eighteenth  clay  of  January,  1871.  the  plaintiff  in  error 
settled  upon  a  tract  of  land  in  Cass  county,  belonging  to  the  United 
States,  and  on  the  sixteenth  day  of  February  following,  filed  with 
the  register  of  the  proper  land  office  his  declaratory  statement  of 
his  intention  to  pre-empt  the  same.     The  tract  of  land  in  ques- 
tion was  within  the  grant  of  land  from  the  United  States  to  the 
B.  &  M.  R.  R.  Co.,  and  had  been  offered  at  public  sale  pi'ior  to 
the  passage  of  the  act  making  the  grant  aforesaid,  but  at  the  date 
of  said  settlement  and  of  filing  the  declaratory  statement  it  was  not 
subject  to  private  entry.     The  plaintift".  from  the  time  of  settle- 
ment until  now,  has  resided  upon  and  cultivated  said  land,  and 
has  made  valuable  improvements  thereon.     It  appears -from  the 
record  that,  the  plaintiff'  did  not  make  the  pi'oof  required  as  to 
qualification,  settlement,  and  cultivation,  until  about  the  first  day 
of  June,  1872,  at  which  time  he  appeared  at  the  proper  land  oflfice 
with  his  witnesses  and  offered  to  prove  all  the  facts  necessary  to 
entitle   him  to  enter  said   land,  and  offered  to  pay  the  sum  of 
money  required  to  enter  the  same,  but  the  register  and  receiver 
refused  to  permit  him   to  enter  said  land,  holding  that  by  reason 
of  his  failure  to  prove  up  within  one  year  from  the  date  of  settle- 
ment he   had  forfeited   the   same.     The  defendant  in  error  now 
holds  the  legal  title  to  the  land,  and  in   an  action  of  ejectment 
recovered  judgment  against  the  plaintiff  in  error  for  the  posses- 
sion thereof,  to  reverse  which  the  plaintiff"  brings  the  case  into 
this  court  by  petition  in  error. 

Section  2.2G4of  the  Revised  Statutes  of  the  United  States  pro- 
vides that :  "  When  any  person  settles  or  improves  a  tract  of  land, 
subject  at  the  time  of  settlement  to  private  entry,  and  intends  to 
purchase  the  same  under  the  preceding  provisions  of  this  chapter, 
he  shall,  within  thirty  days  after  the  date  of  such  settlement,  file 
with  the  register  of  the  proper  district  a  written  statement  describ- 
ing the  land  settled  upon,  and  declaring  his  intention  to  claim 
the  same  under  the  pre-emption  laws  ;  and  he  shall,  moreover, 
within  twelve  months  after  the  date  of  such  settlement  make  the 
proof,  affidavit,  and  payment  hereinbefore  required." 

Sections  2,265  and  2,266,  require  the  claimant  to  file  his  ai)pli- 
cation  within  three  months  from  date  of  the  settlement. 

Section  2,267  provides  that:  "All  claimants  of  pre-emption 
rights  under  the  two  preceding  sections  shall,  when  no  shorter 
period  is  prescribed  by  law,  make  the  proper  proof  and  payment 


208  Stalnaker  i'  Morrison. 

for  the  land  claimed  within  thirty  montlis  after  the  date  pre- 
scribed therein,  respectively,  for  filin<j;  their  declaratory  notice 
has  expired.'' 

On  the  sixth  day  of  March,  1868,  Congress  passed  an  act  pro- 
ing  that  "nothing  in  the  act  approved  Jnly  1.  1862,  entitled  'An 
act  to  aid  in  the  constrnction  of  a  railroad  and  telegraph  line 
from  the  Missouri  river  to  the  Pacific  ocean,  and  to  secure  the 
government  the  use  of  the  same  for  postal,  military,  and  other 
purposes."  and  the  acts  amendatory  thereof,  shall  be  held  to 
authorize  the  withdrawal  or  exclusion  from  settlement  and  entry, 
under  the  provisions  of  the  pre-emption  or  homestead  laws,  the 
even  numbered  sections  along  the  routes  of  the  several  roads 
therein  mentioned,  which  have  been  or  may  be  hereafter  located  ; 
Provided,  That  such  sections  shall  be  rated  at  two  dollars  and 
fifty'  cents  per  acre.  Cind  subject  only  to  entry  under  those  laws ; 
and  the  Secretary  of  the  Interior  be.  and  he  is  hereby  authorized 
and  directed  to  restore  to  homestead  settlement,  pre-emption,  or 
entry,  according  to  existing  laws-,  all  the  even-numbered  sections 
of  land  belonging  to  the  government,  and  now  withdrawn  from 
market,  on  both  sides  of  the  Pacific  Railroad  and  branches,  where- 
ever  said  road  and  branches  have  been  definitely  located." 

The  B.  &  M.  R.  R.  extension  is  one  of  the  branches  referred 
to  in  the  above  act,  and  the  lauds  within  the  limits  of  the  grant 
belonging  to  the  United  States  are  not  subject  to  private  entry, 
and  were  not  at  the  time  the  plaintiff  settled  upon  the  land  in 
dispute. 

It  is  only  in  cases  where  lands  are  subject  to  private  entry  at 
the  date  of  settlement  that  payment  must  be  made  within  a  year. 

This  provision  was  incorporated  into  the  pre-emption  law  of 
September  4,  1841,  and  although  section  ten  of  that  act  provided 
that  no  sections  of  land  reserved  to  the  United  States  alternate 
to  any  other  sections  granted  to  any  of  the  States  for  the  con- 
structioii  of  any  canal,  railroad,  or  other  public  improvement, 
should  be  liable  to  entry  under  the  provisions  of  that  act.  yet 
afterwards,  when  this  restriction  was  removed,  and  lands  within  the 
grant  were  thrown  open  to  settlement  under  the  pre-emption  laws, 
but  were  not  subject  to  private  entry,  they  are  to  be  treated  in  the 
same  manner  as  unoffered  lands,  and  a  party  pre-empting  any 
portion  of  the  same  has  thirty  months  after  the  date  of  filing  his 
declaratory  statement  in  which  to  make  final  proof  and  pay  for 
the  land. 


Stark  v.  Baldwin.  209 

In  Toicsley  v.  JoliuHon,  1  Neb..  1)5,  this  court  su}-  :  "The  object 
of  the  guards  thrown  around  the  privilege  of  pre-emption  hy  the 
law  is  to  secure  on  the  public  lands  actual,  permanent  settlers." 
The  plaintiff  in  this  case  is  shown  to  be  an  actual  permanent 
settler,  who  went  upon  the  land  in  question  for  the  purpose  of 
cultivating  the  same  and  making  his  home  thereon. 

Can  the  same  be  said  of  the  defendant  ?  Has  tliere  ever  been 
an  actual  bona  fide  attempt  even,  by  him,  to  make  an  actual  settle- 
ment on  the  land  in  question  ?     If  so,  the  record  fails  to  disclose  it. 

The  claim  of  danger,  in  a  peaceal)le  law  abiding  community, 
evidently  afforded  a  convenient  pretext  for  not  residing  on  the 
land,  but  is  not  entitled  to  much  consideration.  The  equities  of 
the  case  are  clearlj'  with  the  plaintiff.  The  jurisdiction  of  a  court 
of  equity  is  undoubted  to  determine  the  rights  of  the  parties. 
Johnson  v.  Tovsley,  13  Wall..  73.  1.  Nev.,  Do.  And  under  the 
code,  an  equitable  defense  may  be  set  up  in  an  action  of  ejectment. 

The  judgment  of  the  district  court  is  reversed,  and  judgment  is 
entered  in  favor  of  the  i)laintiff — the  plaintiff  to  pay  to  the  clerk 
of  this  court  for  the  defendant,  within  ninety  days,  the  amount 
paid  by  him  for  entering  said  land,  with  interest  to  the  date  of 
payment,  and  that  thereupon  the  defendant  shall  convey  the  legal 
title  to  the  plaintiff.  Judgment  acconh'mjh/, 

1.  If  the  land  be  temporarily  witlidrawu  from  entry  by  the  removal  of 
the  land  office,  after  the  pre-einptioa  liling  lias  been  made,  the  time 
which  the  office  was  closed  will  not  be  computed  as  part  of  the  time  in 
which  final  proof  should  be  made,  neither  will  the  pre-emptor  be  required 
to  file  a  new  claim  in  such  new  office.     Beaty  v.  Sale  43  111.,  351. 


Francis  G.  Stark,  appellant,  c.  Edgjar  A.  Baldwin,  appellee. 

Supreme  Court  of  Nebraska. — January  Term,  187S. — 7  Nebraska,  114. 

1.  Public  Lands  ot  the  United  States;  Pre-emption. — Where  it 

is  sought  to  deprive  a  party  of  liis  right  to  pre-empt  lands  belonging 
to  the  United  States,  upon  the  ground  that  he  is  dis(inalified,  bj^  rea- 
son of  a  former  filing  upon  ottered  lands,  from  availing  himself  of 
the  benefits  of  the  act  of  September  4,  1841,  the  buixlen  of  proof  is 
on  the  party  asserting  such  disqualification,  and  he  must  establish 
by  clear  and  satisfactory  evidence,  the  fact  that  the  party  seeking  to 
pre-empt  has  previously  filed  his  declaratory  statement  upon  lauds 
subject  at  the  time  to  private  entr\^ 

2.  Grant  to  B.  &  M.  R.  R.— Lauds  within  the  B.  &  M.  R.  R.  grant  are 

14 


210  Stark  y.  Baldwin. 

not  siil)jcct  to  i^rivate  entry,  and  in  r(\i;;ird  to  settlement  and  entry 
nnder  the  lioniestead  and  i)re-enii)tion  laws  arc  to  be  regarded  as 
unotlered  lands. 

3.  I'KioRiTY  OF  Skttlemfn'I'. — Otlier  things  being  erjual,  priority  of 

settlement  determines  the  rights  of  parties  in  cases  arising  under  the 
iioraestead  and  pre-emption  la\>'s. 

4.  \V  here  the  party  making  the  prior  settlement  has  in  all  respects  com- 

plied with  the  law,  he  is  entitled  to  the  lands  without  regard  to 
anything  ^\Jhich  a  party  making  a  later  settlement  thereon  may 
have  done. 

Appeal  from  the  J3istrict  Court  for  Lancaster  county.  Tried 
before  Pond,  J.,  who  found  upon  the  issues  joined  in  favor  of 
the  defendant. 

The  opinion  states  the  case. 

W.  F.  Ch(qiiit,  J.  M.  Robinson,  and  G.  W.  Lorrlry.  for  appel- 
lant. 

1.  The  vSecretary  of  the  Interior  decided  against  Stark  for  the 
simple  reason  that  he  had  [)reviously,  as  was  claimed  by  said 
secretary,  had  a  filing  on  lands  subject  to  private  entry,  and  that 
filing  prevented  him  from  making  any  other  valid  filing  on  lands, 
whicliwere  not  subject  to  private  entry.  The  land  in  controversy^ 
though  once  offered  and  subject  to  private  entry,  became,  by  the 
withdrawal  for  railroad  purposes,  unoffered,  or  not  subject  to  pri- 
vate entr}' ;  it  was  also  taken  out  of  the  class  of  lands  subject  to 
private  entry  by  having  been  covered  by  a  homestead  entry.  Sfal- 
uuker  v.  Morrison,  6  Neb.,  oG2.  2  Lester,  p.  12i»,  sec.  I'J,  pp.  238 
and  23i),  p.  259,  sec.  6. 

2.  The  decision  "of  the  land  department  that  Stark  had  a  pre- 
vious filing,  and  for  that  reason  was  not  a  (pialified  pre-emptor  is 
}iot  conclusive,  but  may  be  examined,  reviewed,  and  passed  upon 
by  this  court.  Smiley  v.  Sani^json,  1  Neb-,  70  and  74.  Shepley  v. 
Coivan,  1  Otto,  330. 

Cobb  and  31<(r(/n(4t  for  appellee. 

Maxwell.  J. 

On  the  thirteenth  day  of  June.  18r)4,  the  i)laintiff  entered  as  a 
homestead  the  northwest  quarter  of  the  northeast  quarter,  and  the 
north  half  of  the  northwest  quarter  of  section  19,  in  Township  10, 
Kange  7,  east  of  the  sixth  principal  meridian,  in  Lancaster  county, 
the  land  being  within  the  grant  to  the  B.  &  M.  R.  R.  Co.  After- 
wards, apparently  being  under  the  impression  that  he  could  not 


Stark  v.  Baldwin.  211 

perfect  his  title  to  the  same,  lie  sold  his  claim  for  a  trifling  sum. 
and  removed  from  the  land.  The  party  to  wliom  he  sold  tlie 
claim  appears  to  have  been  unable  to  enter  the  land,  and  in  the 
year  1867,  the  plaintitT  again  removed  on  to  the  land  in  contro- 
versy, erected  a  dwelling-lionse  thereon,  and  has  continued  to 
reside  on  said  land  until  the  present  time. 

On  the  seventeenth  day  of  June.  1870,  the  plaintiff  tendered  to 
the  register  of  the  proper  laud  office  his  declaratory  statement  of 
his  intention  to  pre-empt  said  land,  under  the  provisions  of  the 
act  of  September  4.  1841,  and  offered  the  necessary  proof  to 
entitle  hira  to  pre-empt  the  same,  together  with  the  amount  of 
money  required  in  payment  therefor.  His  right  to  make  the  pre- 
emption was  rejected  upon  the  ground  that  the  land  had  reverted 
to  the  B.  &  31.  R.  R.  Co. 

On  the  twenty-eighth  day  of  April,  1871,  the  Secretary  of  the 
Interior  decided  that  lands,  situated  like  those  in  controversy, 
reverted  to  the  United  States,  and  not  to  the  railroad  company, 
and  on  tlie  tenth  day  of  June.  1871.  the  plaintiff  again  appeared 
bef(5re  the  officers  of  the  proper  land  office,  and  •'  offered  to  prove 
up  and  pav  for  said  lands." 

On  the  twenty -third  day  of  August.  1870,  Charles  E.  Van  Pelt 
settled  upon  said  land,  and  tendered  to  the  receiver  of  the  proper 
land  office  his  declaratory  statement  of  his  intention  to  pre-empt 
the  same.  The  statement  was  refused  upon  the  ground  that  the 
land  had  reverted  to  the  railroad  company. 

Afterwards,  on  the  tenth  day  of  June,  1871,  Van  Pelt  obtained 
a  soldier's  homestead  on  said  land,  and  twelve  days  thereafter  he 
pre-empted  the  same,  dating  his  settlement  Jime  20,  1870. 

The  plaintiff  contestsd  the  right  of  Van  Pelt  to  enter  said  land, 
and  the  case  was  finally  decided  against  the  plaintiff,  and  in  favor 
of  Van  Pelt,  by  the  Secretary  of  the  Interior. 
.     On  the  twenty-third  day  of  June,  1873,  Van  Pelt  and  wife  con- 
veyed the  land  in  controversy  to  the  defendant  herein. 

In  the  year  1874,  the  defendant  commenced  an  action  of  eject- 
ment against  the  plaintiff  to  oust  him  from  said  premises. 

This  is  a  suit  in  equity  to  restrain  the  defendant  from  prosecu- 
ting said  action,  and  to  require  him  to  convey  the  legal  title  to 
said  land  to  the  plaintiff. 

The  case  appears  to  have  been  decided  against  the  plaintiff 
herein  by  the  Secretary  of  the  Interior,  upon  the  ground  that  he 
had  previously  filed  upon  lands  subject  to  private  entry. 


212  Staiik  v.  Baldwin. 

From  a  ctirelul  inspection  of  tiie  record  ii)  the  case,  we  are  of 
the  opinion  that  the  testimony  entirely  fails  t3  establish  the  I'act. 
The  plaintiff  and  two  other  witnesses  deny  positively  that  he 
made  the  filinsr  said  to  have  been  made  by  him  in  Dodge  county 
about  the  3^ear  18 GO. 

Where  it  is  sought  to  deprive  a  party  of  his  riglit  to  pre-empt 
lands  belonging  to  the  United  States,  upon  the  ground  that  he  is 
disqualified,  by  reason  of  a  former  filing  from  availing  himself  of 
the  beiifits  of  the  act  of  September  4,  1841,  the  burden  of  proof  is 
on  the  party  asserting  the  disqualification.  And  he  must  establish, 
by  clear  and  satisfactory  evidence,  the  fact  that  the  party  seeking 
to  pre-empt  has  previously  filed  his  declaratory  statement  upon 
lands  subject  at  the  time  to  private  entry. 

The  lauds  in  controversy,  being  within  the  railroad  grant,  were 
not  subject  to  private  entry,  and  in  regard  to  settlement  and  entry 
were  to  be  regarded  as  unoffered  lands.  See  Stahial-ey  v.  Mor- 
rition,  6  Neb.,  363. 

The  plaintiff  made  an  application  to  file  his  declaratory  state- 
ment of  his  intention  to  pre-empt  said  lands  in  June,  1870.  'His 
claim  was  rejected  upon  the  sole  ground  tiiat  the  lands  belonged 
to  the  railroad  company.  Afterwards  tiie  Secretarj'  of  the  Interior 
having  decided  that  the  lands  in  question  had  reverted  to  the 
United  States,  and  were  open  to  settlement  under  the  homestead 
and  pre-emption  laws,  the  plaintilf,  who  had  continued  to  reside 
thereon,  endeavored  to  renew  his  filing  and  to  enter  said  land 
under  the  pre-emption  laws.  The  application  was  refused  and 
the  right  of  pre-emption  denied. 

That  the  plaintiff  settled  upon  the  lands  in  controversy  before 
Van  Pelt,  and  was  actually  residing  thereon  with  his  family  at 
the  date  of  Van  Pelt's  settlement,  there  is  no  question. 

Therefore,  if  he  has  in  all  respects  complied  with  the  law,  he  is 
entitled  to  the  land  without  regard  to  anything  which  Van  I'elt  or 
defendant  may  have  done. 

Other  things  being  equal,  priority  of  settlement  determines  the 
rights  of  the  parties  in  cases  arising  under  the  pre-emption  law. 
Toivsley  v.  Johnson,  1  Neb.,  100. 

As  in  our  opinion  the  plaintiflT  conformed  to  the  requirements 
of  the  pre-emption  law,  he  has  the  equitable  title  to  the  lands  in 
controversy. 

It  follows  that  the  judgment  of  the  district  court  must  be 
reversed,  and  a  proper  decree  is  entered  in  this  court  in  favor  of 


Brill  v.  Stiles.  213 

the  plaintiff.  The  plaintiff  to  pay  to  the  clerk  of  this  court,  within 
ninety  days,  the  amount  paid  by  Van  Pelt  for  entering  said  land, 
together  with  the  fees  for  entering  the  same,  and  interest  on  said 
sums  to  date  of  payment.  The  money  to  be  paid  to  the  defendant, 
who  shall  thereupon  convey  the  legal  title  to  said  lands  to  the 
plaintiff.  Decree  accordingly. 


Henry  Brill  and  Agesilatjs  Rockafeller  v.  Elias  B.  Stiles 
AND  Fredrick  A.  Soule. 

Supreme  Court  of  Illinois.— April  'I'erm,  1864.— .35  Illinois.  .30."). 

Equitable  Title:  B  if  payment  of  purchase  money  and  receiving  wrilich 
agrennciit  to  convey. — A  purchaser  of  land  by  agreement  acquires  an 
equitable  title  when  be  has  completed  his  part  of  the  contract  by 
paying  the  purchase-money  and  receiving  written  evidence  of  the 
agreement  of  the  vendor  to  convey  the  premises. 

i^AM'E:  Ariiilable  in  equity,  but  not  at  law.^Such  a  title  maj'  always  be 
asserted  in  a  court  of  equity,  agauist  the  holder  of  the  legal  title, 
whether  in  the  vendor  or  his  vendee  with  notice.  But  at  law  such  a 
title  is  not  i-egarded  and  is  unavailing  for  a  recovery  or  defense 
against  the  legal  title.' 

Same  :  Entiy  and  purchase  of  government  land.— A  purchase  of  land  of  the 
government,  when  made  in  pursuance  of  law,  and  the  pajmient  of 
the  purchase-money  therefor  and  receipt  of  a  certificate  of  purchase, 
confer  upon  the  purchaser  the  equitable  title  to  the  premises,  to  the 
same  extent  as  a  sale  by  an  individual  owning  the  fee.2 

Same,  Same:  Priorily  of  register's  caiificote  over  patent  i.'isued  on  a  junior 
eiitry.'^ — Where  a  party  entered  land  with  a  military  land  warrant, 
the  sale  in  such  case  being  subject  to  be  defeated,  upon  proof  being- 
made  within  thirty  days  of  a  right  to  a  pre-emption,  which,  however, 
was  not  made,  and  his  vendee  went  into  actual  possession  of  the 
land,  but  no  patent  was  ever  issued  on  such  entry ;  and  subsequently 
to  his  so  taking  possession,  the  land  was  entered  by,  and  a  patent 
issued  to  another  person  whose  grantee  brought  ejectment  against 
the  said  person  in  possession:  Held,  on  a  bill  filed  to  establish  the  prior 
entry  and  to  enjoin  the  prosecution  of  such  ejectment,  that  the 
register's  certificate  to  complainant's  grantor  being  prior  in  point 
of  time  to  the  patent  issued  on  the  subsequent  entry,  it  conferred  an 
equitable  title,  luitil  the  purchase  was  legally  vacated,-  entitled  to 
protection  against  such  subsequent  patent. 

Title  :  Derived  from  government  ;  validity  of  hoiv  determined. — In  deter- 
mining upon  the  validity  of  a  title  derived  from  the  government,  the 
same  rules  apply  as  if  from  an  individual. 


214  Brill  v.  Stiles. 

Cancellation  of  Entry  :  By  Commissioner  of  General  Laiid  Office, 
concludes  no  one.i — The  mere  fact  that  an  entry  of  land  has  been 
declared  void  and  canceled  by  the  Commissioner  of  the  General  Laild 
Office  will  not  have  the  effect  of  vacating  the  entry.  He  is  not  a 
judicial  officer,  and  has  no  power  to  decree  the  rescission  of  contracts ; 
and  his  determination  as  to  the  validitj'^  of  the  sale  concludes  no  one 
in  his  rights. 

Chancery  Practice:  Motion  to  dismvis  Inll  for  ivatd  of  eguity.^—'rhe 
equity  of  a  bill  can  only  be  questioned  on  demurrer  or  on  the  hearing. 
Whether  a  bill  shows  a  right  to  relief  cannot  be  determined  upon 
motion. 

Same:  S«mc.— Where,  after  answer  filed  and  replication  thereto,  the 
defendant  moved  the  court  to  dismiss  the  bill  for  want  of  equity, 
which  motion  was  allowed  and  a  decree  entered  accordingly,  it  was 
Held,  that  this  motion  could  only  be  considered  as  an  oral  demurrer, 
and  tliat  defendant  by  interposing  his  answer  to  the  bill  had  waived 
the  right  to  demur.  The  cause  should  have  been  set  down  for  hearing 
upon  bill,  answer,  replication,  and  proofs. 

Same  :  Defendant  cannot  both  demur  to  and  answer  the  same  allegation. — A 
defendant  in  chancery  cannot  both  demm-  to  and  answer  the  same 
allegations  at  one  time.  After  answer  it  is  too  late  to  demur,  unless 
the  answer  is  first  withdrawn. 

Error  to  Circuit  Court  of  Lee  County. 

Bill  in  equity  filed  by  plaintiffs  in  error  against  defendants 
in  error. 
The  case  is  sufficiently  stated' by  the  court. 
James  K.  Edsall  for  plaintiffs  in  error. 
Geo.  P.  Goodnum  for  defendants  in  error. 

Walker,  C.  J. : 

This  was  a  bill  in  chancery  filed  to  establish  a  prior  entry  of  a 
tract  of  land  from  the  United  States  government,  and  to  enjoin  a 
suit  in  ejectment,  instituted  for  a  recovery,  under  the  junior 
entry.  The  bill  alleges,  and  the  answer  admits,  that  Rockafeller 
entered  the  premises  in  controversy,  at  the  proper  land  office,  on 
the  17th  day  of  December,  1853,  and  received  a  certificate  of  pur- 
chase for  the  same.  That  being  entered  with  a  military  land 
warrant,  the  sale  was  subject  to  be  defeated  by  a  pre-emption 
beino-  proved  at  any  time  within  thirty  days  arter  the  sale.  The 
bill  alleges  that  no  such  pre-emption  was  proved  within  thirty 
days  after  the  entry  of  Rockafeller.  The  complainant  purchased 
the  land  of  him,  on  the  18th  day  of  September,  1854,  and  went 
into  the  actual  possession  of  the  same,  and  had  so  continued  till 
the  time  he  filed  the  bill. 


Brill  v.  Stiles.  215 

It  likewise  api)ears  from  the  bill  and  answer  that  Soiile  entered 
the  land,  at  the  same  office,  on  the  IGth  day  of  June.  1855.  Upon 
this  latter  entry  a  patent  was  issued,  dated  on  the  first  day  of 
November.  1855,  and  that  Soule  conveyed  to  Stiles  on  the  18th 
day  of  July,  1856.  It  also  appears  that  no  patent  ever  issued  on 
the  first  entry  made  by  Rockafeller.  The  answer  admits  all  the 
material  charges  in  the  bill,  but  seeks  to  avoid  their  operation  by 
the  allegation  that  the  first  entry,  for  some  cause  unknown  to 
defendant,  was  void,  and  the  Commissioner  of  the  General  Land 
Office  so  decided,  and  vacated  the  entry.  A  replication  was 
filed  to  the  answer. 

Afterwards,  defendant  moved  the  court  to  dismiss  the  bill  for 
want  of  equity,  which  motion  was  allowed  and  a  decree  entered 
accordingly,  to  reverse  which  this  cause  is  brought  to  this  court. 
A  purchaser  of  land  by  agreement  acquires  an  equitable  title, 
when  he  has  completed  his  part  of  the  contract  by  paying  the 
purchase-money,  and  receiving  written  evidence  of  the  agreement 
of  the  vendor  to  convey  the  premises. 

Sucli  a  title  may  always  be  assei'ted  in  a  court  of  equity  against 
the  holder  of  the  legal  title,  whether  in  the  vendor  or  his  vendee, 
with  notice.  But  at  la'w.  such  a  title  is  not  regarded,  and  is 
unavailing  for  a  recovery  or  defence  against  the  legal  title.  Such 
a  purchase  of  the  government,  when  made  in  pursuance  of  law. 
confers  upon  the  purchaser  the  equital)le  title  to  the  pi-emises,  to 
the  same  extent  as  a  sale  l)y  an  individual  owning  the  fee. 
{Rogers  v.  Brent.  5  Gilm.,  573.)  In  determining  upon  the  validity 
of  a  title  derived  from  the  goverinnent.  the  same  rules  apply  as 
from  an  individual. 

In  the  case  of  Is((ac  v.  Steel,  o  Scam.,  97,  it  was  held  that,  in 
equity,  a  junior  patent  or  registers  certificate  of  entr\'  will  pre- 
vail OA'er  the  elder  one.  if  the  right  on  which  it  is  based  is  prior, 
in  point  of  time,  to  that  upon  which  the  elder  patent  or  certificate 
is  founded.  And  in  the  case  of  Brvner  v.  Moithrre.  Id..  339.  the 
same  rule  is  announced  and  adhered  to. 

It  then  follows  from  these  authorities,  that  the  register's  certifi- 
cate of  purchase  to  Rockafeller.  being  prior  in  point  of  time  to 
the  patent  issued  to  Soule,  it  conferred  an  equitable  title  until 
that  purchase  was  legally  vacated.  The  certificate  itself  provided 
that  it  might  be  done,  upon  proof  being  made,  within  thirty  days, 
of  a  right  to  a  pre-emption.     But  there  is  no  pretence  that  there 


I 


216  JBniLL  V.  Stiles. 

was  any  such  proof  made.     Nor  does  it  appear  that  the  first  entry 
was  illegally  made. 

It  is  true  that  the  answer  alleges  the  entry  was  void  and  had 
been  canceled  by  the  Commissioner  of  the  General  Land  Office. 
But  no  reason  is  given  or  facts  shown  why  that  entry  was  void. 
The  mere  fact  that  it  was  so  declared  by  the  Commissioner  of  the 
General  Land  Office,  did  not  have  the  eflfect  of  vacating  the  entry. 
He  is  not  a  judicial  officer,  and  has  no  power  to  decree  the 
rescission  of  contracts.  His  determination  in  reference  to  tlie 
validity  of  that  sale  concluded  no  one  in  his  rights.  {Rogers  v. 
Brent,  5  Gilm.,  573,  and  authorities  there  cited.) 

The  power  to  adjudge  and  determine  upon  the  validity  of  a  con- 
tract, and  to  hold  them  void,  devolves  alone  upon  the  judiciary. 
The  cancellation  of  the  entry  by  the  commissioner  was  not,  there- 
fore, evidence  that  the  first  entry  was  illegal,  but  that  should  have 
been  shown  by  other  and  legitimate  evidence.  And  until  proved 
to  be  void,  it  was  binding  upon  the  government,  and  its  subse- 
quent grantees.  Nor  could  the  agents  of  the  government,  by  any 
act  of  theirs,  prejudice  the  rights  of  those  claiming  under  Rocka- 
feller.  If  the  entry  was  authorized  by  law,  the  title  passed  to 
him,  subject  only  to  be  defeated  by  proof  of  a  right  of  pre-emp- 
tion, and  if  unauthorized,  he  acquires  no  title.  But  until  it  is 
shown  to  have  been  illegally  made,  or  to  have  been  defeated  by 
proof  of  a  pre-emption,  the  certificate  of  purchase  was  evidence 
of  an  equitable  title. 

According  to  the  uniform  practice  in  courts  of  chancery,  the 
equity  of  a  bill  can  only  be  questioned  on  demurrer  or  on  the 
hearing.  Whether  a  l)ill  shows  a  right  to  relief,  cannot  be  deter- 
mined upon  motion.  In  this  case,  the  cause  should  have  been  set 
down  for  hearing  upon  bill,  answer,  replication  and  proofs.  The 
defendant,  by  interposing  his  answer  to  the  bill,  waived  the  right 
to  demur,  and  this  motion  can  be  considered  nothing  else  but  an 
oral  demurrer.  He  could  not  both  demur  to  and  answer  the  same 
allegations  at  one  time. 

After  answer,  it  is  too  late  to  demur  unless  the  answer  is  first 
withdrawn.  The  court  below  having  erred  in  dismissing  the  bill, 
the  decree  must  be  reversed  and  the  cause  remanded. 

Decree  reversed. 

Note.— 1.  Wales  v.  Bogiie,  31  111.,  323;  Chiniquy  v.  Catholic  Bisliop,  41 
Id.,  148  ;  Franklin  v.  Palmer,  50  Id.,  252  ;  Fischer  v.  Eslaman,  68  Id.,  78  ; 
Valldte  v.  Bennett,  (39  Id.,  632. 


United  States  v.  Thomas  McEntee.  217 

'•2.  See  McDowell  \.  Morgmu  28  111..  528;  Bester  v.  Rankin,  11  Id.,  289, 
292  ;  Aldridi  v.  Aldrich,  37  Id.,  32  ;  IMi/  v.  Sale,  43  /-/.,  351  ;  nohlnn.'!  v. 
Buiin,  54  /d.,  48. 

3.  Sec  Aldrich  v.  Aldrich,  37  111.,  32  ;  Baty  v.  Sa/^  43  W.,  351  ;  Robbius 
V.  57<H??,  54  Id.,  48;  see,  also,  Beste)  v.  Rankin,  11  ill.,  289,  where  the 
doctrine  of  bona  fide  purchaser  was  applied. 

4.  See  Baty  v.  Sale,  43  111.,  351. 

5.  See  Judson  v.  Stephens,  75  111.,  255. 


The  United  States  r.  Thomas  McEntee. 

United  States  District  Court.— District  of  Minnesota,  1877. 

{Taken  from  Copp''s  Land  Owner,  December  No.,  1877.) 

The  right  to  cut  timljcr  on  the  public  domain  by  homestead  settlers, 
limited  to  purposes  of  cultivation. 

This  is  an  action  to  recover  the  value  of  a  large  quantity-  of 
timber  cut  by  the  defendant  upon  a  section  alleged  to  be  a  portion 
of  the  public  lands,  and  removed  therefrom. 

It  is  claimed  by  the  defendant  that  the  timber  was  cut  upon  a 
tract  of  land  entered  by  him  under  the  act  of  Congress,  approved 
May  20,  1862,  entitled  "An  act  to  secure  homesteads  to  actual 
settlers  upon  the  public  domain.'"  It  was  undisputed  that  the  tim- 
ber was  cut  down  upon  land  for  which  the  defendant  had  paid 
the  entry  fee  and  made  an  affidavit  required  ])y  the  law.  April  12, 
1874.  There  was  some  evidence  tending  to  show  that  the  timber 
was  cut  for  purposes  of  traffic  and  sale  alone.  The  court  was 
requested  to  instruct  the  jury,  '-that  if  the  defendant  had  made 
an  affidavit  and  paid  the  entry  fee  for  the  land,  he  was  entitled  to 
cut  and  remove  the  timber  thereon  for  any  purpose  whatever." 

Wm.  W.  BiUsoiK  United  States  District  Attorney,  for  gover  - 
meut. 

/.  /.  E'/an  and  William  W.  Eririn,  for  defendant. 

Nelson,  J.,  charged  the  jury  as  follows  : 

I  decline  to  give  the  instruction  requested.  The  defendant  has 
attempted  to  show  that  the  timber  was  cut  upon  his  homestead, 
as  the  land  was  being  put  in  suitable  condition  for  cultivation,  so 
that  tlie  title  thereto  might  be  perfected.     If  you  so  fnid,  the 


218  TTnited  States  v.  Thomas  McEntee. 

verdict  must  he  a<iainst  the  government ;  l)ut,  if  you  should 
determine  tlie  proof  showed  the  cuttinii;  and  removal  were  for  sale 
and  traffic  alone,  then  a  question  is  presented — an  important 
one — wliat  riglits  and  privileges  are  secured  by  virtue  of  an  entry 
under  tlie  homestead  law  before  a  patent  has  issued  ? 

Until  18G2.  Congress  had  passed  no  general  law  offering  the 
pultlie  domain  in  a  limited  quantity  to  any  person,  the  head  of  a 
family,  who  would  cultivate  and  make  a  permanent  home  thereon. 
Pre-emption  laws  securing  the  rights  to  enter  land  by  purchase  at 
a  minimum  price  fixed  per  acre,  had  been  enacted,  and  donation 
laws  applicable  to  particular  States  had  been  passed,  but  the 
liberal  policy  of  offering  homesteads  had  not  been  before  extended 
to  all  persons.  There  can  be  no  doubt  it  is  a  wise  policy  and 
beneficial  in  its  results.  The  (Quantity  cf  land  is  limited  to  160 
acres,  the  patent  is  not  issued  until  after  proof  of  residence  upon, 
and  cultivation  for  the  term  of  five  years,  and  no  land  acquired 
under  the  act  sliall  in  any  event  become  liable  to  the  satisfaction 
of  any  debt  contracted  prior  to  the  issuing  of  the  patent  therefor. 
If  there  is  an  actual  change  of  residence  or  abandonment  of  the 
land  for  more  than  six  months  at  any  time  before  the  expiration 
of  the  five  years,  tlie  land  entered  will  revert  to  the  United 
States. 

It  becomes  an  important  question,  then,  if  the  liomestead  entry 
is  wholly  timl)er  land,  or  nearly  so,  as  in  this  case,  what  riglits 
and  privileges  with  reference  to  the  timber  are  acquired.  Con- 
gress, by  this  law,  intended  to  foster  and  encourage  the  agricul- 
tural interests  of  the  country  and  induce  settlement  of  the  vast 
vacaiit  public  domain,  and  secure  permanent  homes  to  settlers. 
Everything  necessary  for  the  cultivation  of  the  land  and  mani- 
festino;  an  intention  to  make  permanent  occupancy  and  honu  fide 
settlement,  is  legitimate  and  proper  to  be  done.  The  land  can 
be  cleared  and  timber  sold,  if  cut  down  for  the  purpose  of  cultiva- 
tion ;  but  if  sale  and  traffic  is  the  only  reason  for  severing  the 
timber,  and  it  is  not  done  with  a  view  of  improving  the  land,  tlie 
intentions  of  the  law-giver  are  suliverted. 

Each  case,  however,  must  depend  upon  its  attendant  circum- 
stances, and  it  is  a  question  of  fact  for  the  jury  to  determine, 
whether  tlie  person  claiming  the  benefit  is  acting  in  good  faith.  I 
know  of  no  better  rule  to  apply  than  the  one  adopted  in  the  case 
of  a  lessee  for  life  or  a  term  of  years,  charged  by  his  lessor  with 
waste.     If  the  land   leased  is  wild  and  uncultivated  and  wholly 


Seymour  <;.  Sanders.  219 

covered  with  timber,  the  lessee  would  nndoubtedl}'  have  a  right  to 
cut  so  much  as  may  be  necessary  for  cultivation,  and  the  extent 
to  which  timber  may  be  cut  is  always  a  question  of  fact  for  a 
jury.  Unless  there  is  somethino;  exceptional,  which  does  not 
appear,  defendant  could  not  sever  all  timber  and  sell  it,  without 
making  some  provision  for  fences  and  other  necessities  of  his 
farm,  and  such  as  he  does  cut  and  se!l  must  be  incident  to 
the  improvement  of  the  land.  A  little  common  sense  and  good 
judgment  applied  to  tlie  facts  in  this  case  will  give  a  correct 
verdict. 

Tlie  jury  found  for  tlie  pJaiiitijf. 

Note. — One  wlio  has  entered  land  under  the  homestead  act  and  con- 
tinues to  reside  thereon,  is  entitled  to  riparian  rights  in  the  use  of  water 
thereon.     Union  M.  &c  M.  Co.  v.  Daiigbenj,  2  Sawyer,  450. 

In  an  action  of  trespass  by  the  United  States,  the  defence  of  a  i-iglit  of 
pre-emption  to  the  land  cannot  be  set  up  wliere  no  steps  haveljeen  taken 
to  secure  the  pre-emption  right.     United  States  v.  Brown,  4  McLean,  378. 


William  H.  Seymour  et  al.  v.  Daniel  Sandeks  and  Wife. 

U.  S.  Circuit  Court  District  of  Minnesota,  1874.-3  Dillon,  437. 

Public  Lands. — Homestead  Ad. — Exemption  Provision. 

1.  The  fourth  section  of  the  homestead  act  of  Congress  of  May  20th,  1862, 

(12  Stats,  at  Large,  393),  which  provides  that  no  lands  acquired  there- 
under shall  in  any  event  become  liable  to  any  debt  contracted  prior 
to  the  issuing  of  the  patent  therefor,  is  valid  and  binding  upon  the 
States. 

2.  The  power  of  Congress  to  dispose  of  the  public  domain,  and  the  policy 

of  the  above  exemption  proAision  in  the  homestead  act,  considered. 

Before  Dillon  and  Nelson,  J  J. 

This  was  an  action  of  ejectment  to  recover  possession  of  eighty 
acres  of  land  in  Goodhue  county.  jNIinnesota. 

The  plaintiffs  allege  tliat  they  were  owners  of  the  land  Novem- 
ber 1st.  1872,  and  that  the  defendants  unlawfully  detain  tlie 
same. 

The  defendants  in  their  answer  allege  that  ever  since  April  10th, 
1868.  they  have  been,  and  before  that  time  were,  and  still  arc.  owners 
in  fee  of  said  lands  and  are  in  possession  thereof,  and  that  Daniel 
Sanders  duly  entered  it  at  the  local  land  otiice  under  the  home- 


220  Seymour  v.  Sanders. 

ste.ad  act  of  Congress  (12  Stats,  at  Large,  392).  and  holds  and 
occnpies  it  as  a  homestead  with  his  family,  and  that  no  patent 
has  ever  been  issned. 

The  cause  was  tried  on  astipulation  as  to  the  facts.  From  this 
stipulation  it  appears  that  Daniel  Sanders,  on  March  14th,  1863, 
settled  upon,  improved  and  entered,  one  hundred  and  sixty  acres 
of  the  public  lands  under  the  said  homestead  act.  That  he  com- 
plied with  said  act  and  pi-oved.  perfected  and  completed  his  right 
to  a  title  on  April  10th,  1868,  and  on  that  da}^  became  entitled  to 
a  patent  and  received  the  final  certificate,  signed  by  the  proper 
receiver  of  the  United  States  Land  Office.  It  does  not  appear  that 
the  patent  has  yet  issued.  The  plaintiffs  obtained  judgment  in 
the  State  court  against  Daniel  Sanders  on  May  25th,  1888,  and  on 
the  same  day  docketed  it  in  the  office  of  the  clerk  of  that  court  in 
Goodhue  county,  where  the  land  was  situated. 

By  General  Statutes  of  IMinnesota,  pp.  485,  488,  sec.  254.  Judg- 
ments are  liens  on  all  the  real  property  of  the  judgment  debtor  in 
the  county,  or  afterwards  acquired  by  him. 

The  plaintiflTs  issued  execution  on  this  judgment  August  30th, 
1871,  and  Sanders  selected  and  the  sheriff  set  off  to  him  as  exempt, 
the  south  half  of  the  said  180  acres,  under  the  State  exemption 
laws  (Gen.  Stats,  of  Minnesota,  p.  498,  ch.  18),  and  sold  the  north 
half  (being  the  land  in  dispute)  to  the  plaintiffs  on  October  21st, 
1871.  One  j'ear  from  such  sale  expired  and  no  redemption  was~ 
made  from  the  sale,  and  under  the  statute  the  certificate  became 
evidence  of  absolute  title  in  plaintiffs  without  further  convej'^ance. 
(Gen.  Stats,  of  Minnesota,  p.  491,  sec.  290.) 

Daniel  Sanders  made  a  deed  of  this  eiglity  acres  of  land  to  his 
wife.  Mary  Ann  Sanders,  on  Api'il  2od,  1868,  and  for  that  reason 
she  is  made  a  defendant.  This  deed  was  not  recorded  until  June 
24th,  1869.  By  the  Gen.  Stats,  of  Minnesota,  p.  500,  sec.  2,  such 
a  deed  is  permitted  if  the  conveyance  contains  a  power  of  dispo- 
sition by  deed,  will,  or  otherwise  {Leighto)i  v.  Sheldon.  16  ]Minn., 
243),  but  is  void  as  to  his  creditors  unless  recorded  in  proper 
registr}^  within  seventy  days  after  its  execution  and  delivery. 
This  deed  does  not  contain  such  power  and  was  hot  so  recorded. 
The  plaintiffs  were  his  creditors,  and  as  such  claim  that  the  deed 
to  the  wife  was  void.  The  stipulation  provides  that  if  the  fourth 
section  of  the  homestead  act,  so  called  (12  Stats,  at  Large,  392), 
is,  in  its  application  to  this  case,  constitutional,  and  a  valid  and 
binding  regulation  of  the  judicial  power  and  policy  of  the  State  of 


I 


Seymour  v.  Sanders.  '  221 

]Miniiesot{i.  and  paramount  to  the  State  laws  and  regulations  in 
regard  to  exemptions  from  levy  and  sale  on  writs  of  execution, 
then  judgment  shall  be  given  for  the  defendants,  otherwise  for  the 
plaintift's. 

The  Gen. -Stats,  of  Minnesota,  p.  448,  sec.  26'J,  provide  that  all 
])roperty,  real,  personal  or  mixed,  belonging  to  the  defendant  in 
the  execution  may  be  levied  upon  and  sold,  liut  by  the  same 
statute,  p.  498,  sec.  1,  it  is  provided  that  a  homestead  in  quantity 
not  exceeding  eighty  acres  and  the  dwelling  house  thereon,  to  lie 
selected  by  the  owner  thereof,  and  owned  and  occupied  by  any 
resident  of  this  State,  sliall  not  be  subject  to  levy  or  sale  upon 
execution. 

The  act  of  Congress  approved  May  20th,  1862,  (12  Stats,  at 
Large,  303),  provides  that  no  lands  acquired  under  that  act  shall 
in  any  event  become  liable  to  the  satisfaction  of  any  debt  or  del)ts 
contracted  prior  to  the  issuing  of  the  patent  therefor. 

By  the  act  of  Congress  approved  February  2(3th.  1857,  (11  Stats.. 
at  Large.  167,  sec.  5),  authorizing  the  people  of  Minnesota  to  form 
a  constitution,  it  was  provided  that  the  State  should  "never  inter- 
fere witJi  the  primary  disposal  of  the  soil  within  the  same  b}^  the 
United  States,  or  with  anj^  regulation  Congress  might  find  neces- 
sary for  securing  the  title  in  said  soil  to  bona  fide  purchasers 
thereof."  These  provisions  were  incorporated  into  the  State  con- 
stitution (art.  2,  sec.  3),  and  were  ratified  bj^  a  vote  of  the  people. 
The  State  was  admitted  into  the  Union  May  11th,  1858.  on  an  equal 
footing  with  the  original  States. 

CJuiyh's  C.  Wilson,  for  the  plaintiflTs. 

C.  and  J.  C.  McCltcre,  for  the  defendants. 

Dillon,  Circuit  Judge  : 

Congress  is  invested  by  the  constitution  with  the  express  power 
of  disposing  of  and  making  all  needful  rules  and  regulations 
respecting  the  public  domain.  This  gives  to  Congress  authority 
to  dispose  of  the  public  lands  without  limitation,  and  leaves  to  its 
discretion  the  mode  of  disposition.  {United  States  v.  Gratiot,  14 
Pet.,  526.) 

If  the  land  here  in  question  were  within  one  of  the  territories 
of  the  United  .States,  it  would  hardly  be  doubted  that  Congress 
could  lawfulW  provide  in  an  act  for  the  disposal  of  the  public 
lands,  that  it  should  not  be  liable  for  debts  contracted   by  the 


222  Seymour  v.  Sanders. 

homestead  settler  i)ri()r  to  tlie  issue  of  the  patent.  This  the 
learned  counsel  for  the  plaintiffs  conceded,  but  they  claim  that 
sec.  4  of  the  homestead  act  of  Congress  of  IMav  20th,  1882, 
should  be  limited  in  its  a[)plication  to  the  pul>lic  domain  outside 
of  the  respective  States.  But  the  i)ower  of  Congress  within  the 
limits  of  the  State  of  Minnesota,  is,  in  our  judgment,  precisely 
the  same  as  respects  the  modes  and  purposes  of  disposing  of  the 
public  lands,  as  it  is  within  the  territories. 

Over  the  public  lands,  so  far  as  concerns  their  disposition, 
whether  as  to  time,  mode  or  objects,  the  State  has  no  authority 
whatever.  On  the  other  hand,  the  authority  of  Congress  is  para- 
mount and  exclusive.  Any  question  upon  this  subject  which 
might  otherwise  exist,  growing  out  of  the  respective  powers  of 
the  State  and  federal  governments,  is  precluded  by  a  solemn 
compact  in  the  act  })roviding  for  the  admission  of  the  State, 
and  in  the  constitution  of  the  State  itself,  to  the  etfect  that  the 
State  would  '-never  interfere  with  the  primary  disposal  of  the 
soil  within  the  same  Ijy  the  United  States,  or  with  any  regulation 
Congress  might  find  necessary  for  securing  the  title  in  said  soil 
to  bona  fide  purchasers  thereof." 

Thus  the  plenary  power  of  Congress  over  the  disi)osition  of  the 
public  lands  within  the  State  is  expressly  recognized  to  exist  by 
the  organic  law  of  the  State  :  and  we  liold  that  Congress  may 
dispose  of  them  at  such  time,  in  such  manner,  and  for  such  pur- 
poses as  in  its  judgment  it  may  deem  best. 

The  title  to  all  public  lands  must  i)ass  and  vest  according  to 
the  laws  of  the  United  States,  {Wilcox  v.  JncJison.  13  Pet.,  498, 
ol7.)  And  undoubtedly,  it  is  true  as  a  general  proposition,  that 
after  the  title  has  passed  from  the  United  States,  and  is  fully 
vested  in  purchasers  from  it.  the  land  becomes  subject  to  State 
legislation,  and  the  power  of  the  general  govemiment  with  respect 
to  it  ceases,  except  so  far  as  it  is  otherwise  lawfully  provided  in 
the  act  by  which  Congress  disposes  of  the  land. 

It  has  been  expressly  adjudged  liy  the  »Supreme  Court  that 
Congress  cannot  be  confined  to  any  particular  mode  of  disposition, 
but  may  lease  or  otherwise  dispose  of  the  public  domain  in  its 
discretion,  {United  States  v.  Gratiot,  siiprtt.) 

Down  to  1882,  Congress  had  never  adopted  the  polic}'  of  offer- 
ing the  public  lands  to  those  who  would  cultivate  and  make 
permanent  homes  upon  them,  and  the  act  of  May  10th,  of  that 
year,  is  the  first  homestead  law  of  the  general  government.     It 


I 


Seymour  v.  Saunder?.  223 

would  be  dittirult.  perhaps,  to  point  to  any  enactment  of  tUc 
federal  Congress  more  wise  in  conception,  just  in  polie_Y.  and 
beneficial  in  results,  than  this.  And  these  lienefits  were  chiefly 
to  the  States  by  securing  therein  at  an  early  day  a  large  body 
of  permanent  settlers  upon  the  imblic  binds.  P>y  the  act  a 
quantity  of  land  not  exceeding  180  acres  is  given  to  any  head  of 
a  family  possessing  the  required  qualifications,  on  condition  of 
settlement,  cultivation,  and  continuous  occupancy  as  a  home  by 
the  settler  for  the  i)eriod  of  five  years.  During  this  period  the 
settler  is  prevented  from  alienating  any  part  of  it,  or  from  making 
any  actual  change  of  residence,  or  IVoui  abandoning  the  land  for 
more  than  six  months  at  any  time.  If  he  complies  with  the  pro- 
visions of  the  act.  he  becomes  entitled  to  a  patent  at  the  end  of 
five  years. 

Section  4.  the  validity  of  which,  in  its  application  to  this,  case, 
is  the  question  to  be  settled,  is  in  these  words  :  "  No  lands  acquired 
under  the  provisions  of  this  act  shall,  in  any  event,  become  liaVile 
tt)  the  satisfaction  of  any  debt  or  debts  contracted  prior  to  the 
issuing  of  a  patent  therefor." 

Tt  is  not  difficult  to  discover  the  reason  for  this  provision.  A 
leading  object  of  the  enactment  was  to  benefit  the  poor  man  who 
was  unable  to  buy  the  lands  at  government  price  and  receive  his 
title  at  once  and  without  conditions  ;  and  it  undoubtedly  occurred 
to  Congress  that  many  persons  who  had  lieen  unfortunate  and 
were  insolvent  would  avail  themselves  of  the  act ;  and  conceiving 
that  the  creditor  in  such  cases  had  no  equity  to  subject  to  the 
payment  of  his  debt  lands  which  had  been  given  to  the  debtor  by 
the  bounty  of  the  government,  and  to  protect  the  debtor  and  to 
encourage  persons  to  settle  upon  the  public  domain  under  the  act, 
the  fourth  section  was  adopted.  In  the  case  before  us  the  debt 
upon  which  the  plaintiffs  obtained  judgment  was  created  after  the 
defendant  had  settled  upon  the  land  under  the  homestead  act  of 
Congress,  and  before  the  expiration  of  the  five  years,  so  that  the 
creditor  was  all  along  apprised  that  the  laud  was  not  liable  to  the 
payment  of  his  debt,  and  certainly  he  is  without  just  ground  of 
complaint  against  the  exemption.  His  legal  ground  of  objection, 
however,  is  that  the  exemption  is  iin  invasion  of  the  lawful  rights 
of  the  State,  and  conflicts  with  her  laws,  wliich  exempt  only  80 
acres  of  land  to  the  debtor.  It  will  be  observed  that  Congress 
does  not  attempt  to  exempt  the  land  from  debts  contracted  after 
the  patent  had  issued,  or,  in  other  words,  after  the  title  has  passed 


224  Oaks  v.  Heaton. 

from  the  general  governiuent.  Before  the  title  has  thus  passed, 
Congress,  under  its  power  to  dispose  of  the  public  lands,  may 
prescri1)e  the  terms  and  condition  upon  which  the  disposition  shall 
be  made,  and  as  against  the  State,  it  is  our  judgment  that  it  was 
competent  for  Congress  as  incidental  to  the  power  of  disposal  of 
the  lands,  and  to  promote  the  enlightened  and  humane  policy  it 
had  in  view,  to  provide  that  the  lands  acquired  by  the  homestead 
settler  should  he  held  liy  him  free  from  all  antecedent  debts. 

This  question,  which  is  one  of  great  i)ractical  moment,  and 
affecting,  as  counsel  inform  us  very  many  persons,  does  not  appear 
to  have  before  arisen  for  judicial  determination,  but  we  feel  quite 
confident  that  our  conclusion  is  correct. 

Agreeably  to  the  stipulation  of  counsel,  in  case  we  should  be 
of  opinion  that  the  fourth  section  of  the  act  is  valid,  judgment  will 
be  entered  for  the, defendant. 

Nelson,  J.,  concurs  in  the  foregoing,  and  is  of  opinion  also  that 
the  same  result  follows  from  the  fact  that  no  patent  has  ever 
emanated  from  the  government,  and  hence  the  plaintiff  not  having 
legal  title  cannot  maintain  ejectment. 

Judg'tneuf  for  defendants. 

Note. — Held,  the  same  in  Gile  v.  HaUack%  33  Wis..  523  ;  and  Paiion  v. 
RicJimoiid,  28  La.  Ann.,  795. 

And  the  fact  that  the  judgment  Avas  rendered  after  the  patent  had 
been  issued,  and  the  exemption  was  not  chiimed  by  the  patentee  but  by 
his  grantee,  can  make  no  difference.  Miller  v.  Liille.  47  Cal.,  34S ;  and 
Btmsell  v.  Lowt/i,  21  Minn.,  1G7. 

By  commuting  and  paying  for  the  land  under  the  8th  section  of  the 
homestead  act,  the  entry  .is  not  changed  from  a  homestead  to  a  pre- 
emption entry,  and  the  fact  that  the  land  was  not  occui^ied  as  a  home- 
stead at  the  time  of  the  sale,  and  that  the  homestead  party  stood  by  at 
such  sale  and  made  no  objection  to  the  sale,  can  make  no  difference; 
such  sale  is  null  and  void.     Clark  v.  Baijltij.,  5  Oregon.  343. 


Oaks  r.  IIeaton  et  o.l. 

Supreme  Court  of  Iowa. — December  Term,  1S7G. — 44  Iowa,  IIG. 

1.  Public  Lands;  Homestead  act;  Contract.— An  occupier  of  land 
under  the  homstead  act  of  18(i2,  cannot  make  a  valid  contract  tiiut 
he  will  convey  the  land  when  he  shall  have  acquired  the  legal  title 
thereto. 


Oaks  v.  Heaton.  225 

2.  FuIjE  Applied. — U.  had  pre-empted  a  quarter-section  of  government 
land,  and  had  made  \aluable  improvements  thereon,  when  he  agreed 
witli  II.  tliat  if  the  latter  would  take  possession  and  perfect  a  title 
under  the  homestead  act,  he  woidd  relinquish  liis  rights  already 
acquired,  and  should  receive  in  consideration  therefor  a  deed  to  half 
of  tlie  land  when  the  title  should  be  perfected ;  //e/r/,  that  the  agree- 
ment was  in  violation  of  the  provisions  of  the  homestead  act  of  the 
United  States,  and  could  not  be  enforced. 

Appeal  from  Plymouth  Circuit  Court.  Thursday.  October  5. 
The  plaintitf  alleges  in  his  petition,  in  substance,  that  on  the 
5th  day  of  July,  1870,  he  held  a  valid  claim  under  the  pre-emption 
laws  of  the  United  States,  and  under  the  laws  of  Iowa,  to  the 
southeast  quarter  of  section  number  thirty-six.  in  Township  num- 
ber ninety-two,  of  Range  forty-eight,  and  was  then,  and  from 
about  April  1,  1^70,  had  been  in  possession  of  and  residing  on 
the  same  ;  and  had  erected  a  good,  substantial  dwelling-house, 
and  made  valuable  improvements  thereon,  amounting  in  value  to 
over  five  hundred  dollars.  That  on  or  about  said  5th  day  of 
Juh',  at  the  solicitation  of  the  defendant.  Lucius  R.  Heaton.  plain- 
tiff was  induced  to  sell  to  the  said  Lucius  R.  Heaton  plaintiff's 
claims  to.  and  interest  in  said  land,  upon  the  following  terms  : 
Plaintiff  agreed  to  relinquish  his  pre-emption  right  to  said  land, 
and  Lucius  R.  Heaton  agreed  to  take  and  hold  the  same  and 
perfect  his  title  thereto,  under  the  homestead  laws  of  the  United 
States,  and  when  he  had  thus  perfected  his  title  to  said  land  to 
convey  to  plaintiff,  by  a  good  and  sufficient  deed,  the  west  half  of 
said  quarter-section.  That  plaintiff  in  the  meantime  continued, 
and  still  continues  in  the  possession  of  the  west  half  of  said  land. 
That,  in  accordance  with  said  agreement,  plaintiff  relinquished 
his  pre-emption  claim  to  saidy  quarter-section,  and  Lucius  R.  Hea- 
ton entered  the  same  under  the  homestead  laws  of  the  United 
States,  and  went  into  the  occupancy  and  possession  of  the  east 
half  of  said  quarter-section. 

That,  for  the  purpose  of  more  fully  carrying  out  said  agree- 
ment and  reducing  it  to  writing,  so  far  as  could  reasonably  be 
done,  the  said  Lucius  R.  Heaton  and  Nancy  J.  Heaton,  his  wife, 
for  the  consideration  aforesaid,  which  was  agreed  upon  and  fixed 
at  five  hundred  dollars,  executed  and  delivered  to  plaintiflT,  on  or 
about  the  17th  day  of  August.  1870.  a  special  warranty  deed, 
conveying  to  plaintiff  all  their  right,  title,  and  interest  in  and  to 
the  west  half  of  said  quarter-section. 

15 


226  Oaks  v.  Heaton. 

That  ou  or  about  the  18th  day  of  November.  1872,  Lucius  R. 
Heaton  proved  up  and  filed  in  tlie  proper  United  States  land 
office  the  requisite  proof  to  entitle  him  to  a  patent  from  the 
United  States  for  the  said  quarter-section,  under  said  homestead 
laws,  and  received  from  the  proper  officers  of  the  land  office  a 
certificate  entitling  him  to  receive  a  patent. 

That  since  proving  up  and  obtaining  said  certificate,  Lucius  R. 
Heaton  utterly  refuses  to  convey  to  plaintiff  the  west  half  of  said 
quarter-section,  and  has  declared  to  plaintifl^  that  he  never  had 
anj^  intention,  at  any  time,  of  so  doing. 

That  ever  since  the  5th  day  of  July.  1870.  the  plaintiff  has  con- 
tinued to  reside  with  his  family  on  the  west  half  of  said  quarter- 
section  ;  that  for  more  than  a  year  past  he  has  had  sixty  acres  of 
the  same  under  cultivation  ;  that  he  paid  the  defendant  Heaton 
$50  for  breaking  a  portion  of  the  same,  and  has  made  other 
improvements,  exceeding  in  value  $800. 

That  the  defendants,  Lucius  R.  and  Nancy  J.  Heaton,  confed- 
erated with  the  defendant.  Samuel  E.  Day,  to  defraud  the  plain- 
tiff of  his  rights  in  the  premises,  about  the  13th  day  of  January, 
1873,  executed  and  delivered  to  Samuel  E.  Day,  for  the  nominal 
consideration  of  $1,150.  a  duly  acknowledged  warranty  deed  for 
said  quarter-section,  and  the  said  Samuel  E.  Day  executed  and 
delivered  to  Lucius  R.  Heaton  a  duly  acknowledged  mortgage 
deed  of  said  premises,  nominally  for  the  purpose  of  securing  to 
Heaton  the  sum  of  $1,050,  in  certain  instalments. 

That  Samuel  E.  Day  had  actual  notice  of  the  special  warranty 
deed  to  plaintiflfand  of  plaintiff''s  claim  to  the  west  half  of  said 
quarter-section,  and  that  said  Day  paid  no  consideration  for  said 
quarter-section,  and  that  the  warranty  deed  and  mortgage  were 
executed  to  give  color  of  title  to  Day,  in  order  to  cheat  and 
defraud  the  plaintiff. 

That  the  defendants.  Day  and  Lucius  R.  Heaton.  threaten  to 
divest  plaintiff  of  the  west  half  of  said  quarter-section,  and  of  his 
improvements  thereon. 

Plaintiff  prays  that  the  deed  to  Day.  and  the  mortgage  to  Hea- 
ton. be  declared  fraudulent  and  void,  so  far  as  the  west  half  of 
said  quarter-section  is  affected  ;  that  plaintiff  be  decreed  to  be  the 
owner  thereof,  and  the  defendants,  Lucius  R.  and  Nancy  J.  Hea- 
ton. be  ordered  to  convey  the  same  to  him. 

The  defendants  filed  answers  denying  most  of  the  material 
allegations  of  the  petition,  and  cross-petitions  asking  affirmative 


Oaks  v.  Heaton.  227 

relief.  Afterwards  tlie  defendants  file  an  amendment  to  their 
answers,  as  follows  :  ••  That,  as  alleged  by  plaintiff,  the  defend- 
ant, Lucius  E.  Heaton.  did  take  the  southeast  quarter  of  section 
thirty-six,  in  Township  ninety -two,  of  Range  forty-eight,  Plymouth 
county.  Iowa,  as  a  homestead,  under  the  homestead  laws  of  the 
United  States,  to  wit :  An  act  of  Congress  entitled  an  act  to 
secure  homesteads  to  actual  settlers  on  the  public  domain, 
approved  INIay  20th,  1862,  and  acts  amendatory  thereto,  and  that 
by  the  terms  of  said  homestead  law,  all  parties  are  prohil)ited 
from  taking  such  homesteads  for  the  use  and  benefit  of  any  other 
person,  and  are  prohibited  from  making  any  alienation  of  such 
lands  while  held  as  homesteads,  and  such  taking  for  the  use  of 
another  or  alienation  renders  such  entry  void,  and  that  the  agree- 
ments and  contracts  set  forth  in  paragraphs  4,  5,  6,  and  '  Exhibit 
A,*  of  plaintiffs  petition,  are  wholly  illegal  and  void,  and  in  viola- 
tion of  said  homestead  act.  and  the  plaintiff  can  recover  nothing 
upon  said  alleged  agreement,  and  the  same  is  a  fraud  upon  said 
act,  and  the  plaintiff  is  a  inirticeps  criminis  in  the  perpetration 
thereof." 

The  court  decreed  that  plaintiff  is  the  owner  of  the  west  half 
of  the  quarter-section  in  controversy,  and  quieted  his  title  thereto. 
The  defendants  appeal.  It  is  agreed  that  the  action  shall  be  tried 
in  this  court  on  the  following  agreed  statement  of  facts  : 

1.  All  the  material  facts  and  statements  in  plaintiflf's  petition 
shall  be  taken  and  considered  as  true,  that  have  any  bearing  on 
the  issues  joined  thereon,  in  defendants"  amendments  to  their 
answers,  upon  which  issues  alone  defendants  prosecute  their 
appeal. 

2.  It  is  agreed  and  admitted  in  addition  that,  prior  to  April  6. 
1868,  Oaks  had  built  a  good,  substantial  dwelling  house,  of  hewn 
logs,  one  and  one-half  stories  high,  on  the  quarter-section  in  con- 
troversy. That,  April  6,  1868,  he  took  possession  with  his  family 
and  has  lived  there  ever  since.  That,  during  the  spring  of  1868, 
he  broke  and  planted  ten  acres  ;  in  July,  built  a  stable  12x18  ;  in 
October,  an  addition  thereto,  20x20  ;  in  the  summer,  built  a  cow 
yard  ten  rods  square,  and  in  the  fall,  plowed  eight  furrows  around 
the  quarter-section.  That,  in  the  spring  of  1869.  he  broke  seven 
acres  more,  and  put  all  the  plowed  land  in  crops,  and  planted  500 
Cottonwood,  and  some  maple  and  mulberry  trees,  and  in  the  sum- 
mer, dug  and  constructed  a  substantial  out-door  cellar,  10x12, 
and  in  September,  1861).  filed  a  pre-emption  on  the  quarter-section. 


228  Oaks  v.  Heaton. 

That,  in  the  spring  of  1870.  he  broke  five  acres  more,  and  put  all 
his  plowed  land  in  crops,  except  five  acres,  which  he  rented  to 
defendant.  Lncins  R.  Ileaton  ;  and  that,  up  to  Juh"  oth.  1870,  he 
had  made  improvements  on  the  land,  costing  in  labor  and  money, 
more  than  $500.  That  he  is  a  poor  man,  and  with  the  exception 
of  personal  property  needed  for  farm  and  family  use.  has  no  other 
property  besides  that  claimed  in  this  contest. 

Argo  >$•  Bull  and  C.  R.  Marks  for  appellants. 
Pendletou  (S,-  Bailey  for  appellee. 

Day.  J.: 

As  is  apparent  from  the  statement  of  facts,  the  sole  question  in 
this  case  is  :  Can  an  occupier  of  lands,  under  the  homestead  act 
of  1882.  make  a  valid  contract  to  convey  his  homestead,  when  he 
shall  liave  acquired  the  legal  title  ? 

Section  2  of  the  act  in  question  (12  United  States  Statutes  at 
Large.  392),  i)rovides  that  the  person  applying  for  the  benefit  of 
this  act  shall,  upon  application  to  the  register  or  receiver  of  the 
land  office  in  which  he  or  she  is  about  to  make  such  entr3% 
make  affidavit  before  such  register  or  receiver  that  such  applica- 
tion is  made  for  his  or  her  exclusive  use  and  benefit,  and  that 
sucli  entry  is  made  for  the  purpose  of  actual  settlement  and  cul- 
tivation, and  not  either  directly  or  indirectly  for  the  use  or  benefit 
of  any  other  person  or  persons  whomsoever  ;  and.  on  payment  of 
ten  dollars,  he  or  she  shall  thereupon  be  permitted  to  enter  the  quan- 
tity of  land  specified.  Provided,  however,  that  no  certificate  shall 
be  given,  or  patent  issued  therefor,  for  the  space  of  five  years  from 
the  date  of  such  entry  ;  and  if,  at  the  expiration  of  such  time,  or 
any  time  within  ten  years  thereafter,  the  person  making  such 
entry  *  *  *  shall  prove,  by  two  credible  witnesses,  that  he, 
she,  or  they  have  resided  upon  or  cultivated  the  same  for  the  term 
of  five  years  immediately  succeeding  the  time  of  filing  the 
aflSdavit  aforesaid,  and  shall  make  affidavit  that  no  part  of  said 
land  has  been  alienated,  then  he  or  she  shall  be  entitled  to  a  patent. 

It  is  conclusively  presumed  that  plaintiff  knew  of  the  provisions 
of  this  law.  He  is  presumed  to  have  known,  at  the  time  he  made 
this  contract  with  defendant,  and  accepted  a  conveyance  for  one 
half  of  the  laud  intended  to  be  homesteaded,  that  he  had  placed 
defendant  in  a  position  which  rendered  it  necessary  for  him  to 
perjure  himself,  before  he  could  obtain  a  patent  to  the  land.  How 
can  plaintiff  be  permitted  to  compel  a  conveyance,  under  a  con- 


Oaks  c.  Heaton.  229 

tract  which  rendered  it  necessary  that  a  crime  should  l)e  committed, 
before  there  could  be  anything  to  convey?  Tf  plaintiff  had  agreed 
with  defendant,  that  ))laintiff  woidd  aliandon  his  pre-emption  claim 
in  consideration  that  defendant  would  convey  to  plaintiff  one- 
half  the  land  and  then  go  before  the  register  or  receiver  of  the 
land  office,  and  falsely  make  affidavit  that  no  part  of  the  land  had 
been  alienated,  and  thus  by  perpetrating  a  fraud  upon  the  govern- 
ment and  committing  a  felony,  obtain  a  patent  for  the  land,  no 
one  probably  would  claim  that  any  court  could  lend  its  aid  to 
the  enforcement  of  the  agreement.  Although  not  in  words  so 
expressed,  yet  such  is  precisely  the  effect  of  the  agreement  which 
the  plaintiff  seeks  to  enforce. 

In  Dawson  v.  MerriUe,  2  Nebraska.  llO.i  it  was  held  that  the 
policy  of  the  act  of  Congress,  granting  homesteads  on  the  public 
lands,  is  adverse  to  the  right  of  a  party  availing  himself  of  it  to 
convey,  or  agree  to  convey,  the  land  before  he  receives  a  patent, 
and  that  a  court  will  not  lend  its  aid  to  the  enforcement  of  a  con- 
tract which  is  against  public  policy. 

Appellee  relies  upon  Snoic  v.  Flunnery,  10  Iowa,  318.  and 
Nycvm  V.  McAUister.  33  Iowa,  374.  Snoiv  v.  Flannery  was  quite 
different  in  its  facts  and  in  its  principles,  from  this  case.  Snow 
and  Flannery  settled  upon  different  parts  of  the  same  quarter- 
section  of  public  land,  before  survey,  and  both  filed  pre-emption 
claims  upon  the  entire  tract.  Each  remained  in  possession  of  his 
claim.  The  quarter  was  not  subdivided  and  could  not  be  entered 
in  parts.  Their  rights,  by  actual  settlement,  were  equal.  Snow 
proposes  to  pay  Flannery  his  share  of  the  entrance  money  and 
withdraw  his  filing,  if  Flanneiy  would  enter  the  entire  quarter 
and  convey  to  him  his  share. 

Flannery  declined  making  a  positive  agreement  before  taking 
the  pre-emption  oath,  but  said  he  did  not  want  Snow's  land,  and 
would  do  what  was  right  about  it.  Snow  withdrew  his  filing  and 
Flannery  entered  the  entire  tract.  There  was  no  contract  which 
contemplated  any  false  swearing,  or  fraud  upon  the  government. 

The  case  of  Nyram  v.  McAUsfer  is  still  less  like  the  present 
case.  In  that  case,  a  mortgage  was  executed  upon  the  homestead, 
after  the  homesteader  had  occupied  five  years,  and  was  entitled  to 
a  patent,  but  before  the  patent  was  issued.  It  was  claimed  that 
the  mortgage  was  invalid  under  section  4  of  the  homestead  act, 
which  provides  -'that  no  lands  acquired  under  the  provisions  of 
this  act  shall,  in  any  event,  become  liable  to  the  satisfaction  of 


230  KiRKALDIE  V.  LaRRABEE. 

any  debt  or  debts,  contracted  prior  to  the  issning  of  the  patent 
therefor.'*  It  was  held  that  this  provision  was  simply  for  the  benefit 
of  the  settler,  and  was  not  intended  to  disable  hira  from  incum- 
bering his  interest  before  receiving  the  patent.  The  case  at  bar 
arises  under  a  distinct,  and  entirely  different  provision  of  the 
homestead  act.  The  court  below  erred  in  gi'anting  the  plaintiff 
the  relief  asked. 

Whether  plaintiff"  would  be  entitled  to  the  value  of  his  improve- 
ments under  the  provisions  of  the  occupying  claimant  law.  this 
case  does  not  involve,  and  we  do  not  determine. 

Reversed. 

1.  For  opinion  of  Mr.  Justice  Crounse  in  this  case  see  3  Nebraska,  4.58. 


George  Kikkaldie  and  C.  W.  A.  Arenz  o.  John  R.  Larrabee, 
Ellen  M.  Larrabee,  his  Wife,  and  A.  W.  CrTTs. 

Supreme  Court  of  Califoi'nia — October  Term,  J866. — 31  California,  455. 

Federal  Homestead  Act. — There  is  nothing  in  the  act  of  Congress 
of  May  "iOth,  1862,  granting  homesteads  to  settlers  on  public  lands 
wliich  forbids  a  voluntary  alienation  of  the  land  by  the  grantee  who 
lias  acquired  the  same  as  a  homestead. 

Mortgage  of  Public  Lands. — If  one  who  is  in  possession  of  public 
lauds  mortgages  the  same  in  fee,  and  afterwards  acquires  title  to 
the  same  under  the  Federal  Homestead  Act,  he  is  estopped  from 
denying  the  lion  of  tlie  mortgage,  and  cannot  set  up  a  title  after- 
wards voluntarily  acquired  to  defeat  it.  Section  thirty-thr(^  of  the 
act  concerning  conveyances  applies  to  mortgages  as  well  as  absolute 
conveyances. 

Appeal  from  the  District  Court,  Tenth  Judicial  District,  Yuba 
county. 

On  the  16th  day  of  September.  1861.  John  R.  Larrabee  and 
Ellen  M.  Larrabee,  his  wife,  were  in  possession  of  the  southwest 
quarter  of  section  five.  Township  thirteen  north,  Range  four  east. 
Yuba  county,  and  on  the  same  day  mortgaged  it  to  plaintiffs 
to  secure  a  promissory  note  of  even  date.  The  land  was  public 
land  at  the  date  of  the  mortgage.  The  granting  clause  in  the 
mortgage  was  :  "Grant,  bargain,  sell  and  confirm  unto  the  said 
parties  of  the  second  part,  and  to  their  heirs  and  assigns  forever." 
After  the  execution  of  the  mortgage  Larraliee  located  the  land  as 
a  homestead,  under  the  act  of  Congress  approved  May  20th,  1862. 


KlRK-ALDIE  V.  LaRRABEE.  231 

This  action  was  brought  to  obtain  judgment  on  the  note  and  fore- 
close the  mortgage.  The  answer  set  up  as  a  special  defence  that, 
after  makina;  the  note  and  mortgage,  Larrabee  had  made  an  entry 
of  the  mortgaged  premises  as  a  homestead  under  the  federal  home- 
stead law.  The  court  below  ordered  a  sale  of  the  mortgaged 
premises,  but  saved  from  the  effect  and  operation  of  the  judgment 
'•all  rights,  titles,  and  interests  which  defendant  Larrabee  has 
acquired  or  may  hereafter  acquire  to  said  land  under  and  by 
virtue  of  his  said  preliminary  homestead  entry  thereof  under  the 
federal  homestead  law."  The  plaintiffs  appealed  from  the  judg- 
ment. 

/.  L.  AshfonL  for  appellants,  argued  that  the  mortgage  being 
in  fee  and  executed  before  the  passage  of  the  federal  homestead 
law  of  May  20th.  1862,  the  said  act  could  not  be  considered  as 
divesting  the  lien  of  said  mortgage,  and  that  the  act  did  not  pro- 
hibit the  mortgaging  of  property  selected  as  a  homestead,  and 
did  not  declare  any  liens  so  created  thereon  invalid,  and  must, 
therefore,  be  construed  as  permitting  the  same,  and  that  the  act 
only  exempted  the  land  selected  as  a  homestead  from  forced  sale 
for  ordinary  indebtedness,  and  did  not  exempt  it  from  sale  in 
satisfaction  of  a  mortgage  voluntarily  executed  by  the  mortgagor, 
and  that  the  mortgage  being  in  fee  of  the  land  the  mortgagors 
could  not  set  up  any  after-acquired  right  or  title  to  defeat  the  lien 
of  the  mortgage:  and  cited  Clarl:  v.  Baler.  12  Cal..  632.  and 
thirty-third  section  of  the  act  concerning  conveyances.  Wood's 
Digest,  pages  103  and  104. 

J.  0.  Goodtrin.  for  respondents,  argued  the  decisions  in  Clurk 
V.  Baker,  14  Cal..  630.  Hoffley  v.  Maier,  13  Cal.,  14.  and  Whitney 
V.  Buckman.  13  Cal..  538,  were  made  under  statutes  of  this  State 
in  contravention  of  the  common-law  rule  that  a  grant  or  release 
only  operated  upon  the  estate  actually  held  and  owned  at  the  time, 
and  therefore  had  no  application  in  this  case ;  that  the  Constitu- 
tion gave  Congress  the  power  to  make  all  needful  rules  and  regu- 
lations respecting  the  territory  and  other  property  of  the  United 
States,  and  that  under  this  power  the  homestead  law  of  1862  had 
been  passed  ;  that  as  section  thirty  of  the  act  provided  that  "  no 
lands  acquired  under  the  provisions  of  this  act  shall  in  any  event 
become  liable  to  the  satisfaction  of  any  debt  or  debts  contracted 
prior  to  the  issuing  of  a  patent  therefor.'"  the  land  could  not  be 
sold  to  satisfy  the  note,  it  being  a  debt  contracted  before  a  patent 


232  Fuller  v.  Huj^t. 

had  issued.     He  also  argued  that  section  thirty-three  of  the  act 
concerning  conveyances  must  give  way  to  the  law  of  Congress. 

By  the  Court ;  Sawyi:r.  J. : 

Had  the  deed  been  an  absolute  conveyance  in  fee  instead  of  a 
mortgage  in  fee,  any  subsequently  acquired  title  under  our  statute 
concerning  conveyances  would  have  inured  to  the  benefit  of  the 
plaintiff.  (Sec.  33.)  The  fact  that  the  title  subsequently  comes 
from  the  United  States  would  make  no  diflerence.  There  is 
nothing  in  the  homestead  act  of  1862  forbidding  a  voluntary 
alienation  by  the  grantee  under  that  act. 

The  same  principle  applies  to  a  mortgage  of  the  fee.  {Clark  v. 
Baker,  14  Cal.,  630.) 

The  title  will  pass  not  merely  in  consequence  of  the  enforce- 
ment of  the  payment  of  a  debt  by  the  ordinary  process  of  the 
courts,  but  in  consequence  of  the  voluntary  contract  of  the  party 
in  executing  the  mortgage.  The  mortgagor  of  the  fee  is  estopped 
from  denying  the  existence  of  the  lien  which  he  has  attempted  to 
create,  and  from  defeating  by  his  own  act  the  enforcement  of  the 
lien  against  the  property  thus  mortgaged.  (14  Cal..  633-4.  See 
also  Tartar  v.  Hall,  3  Cal..  263  ;  Ha0py  v.  Maier,  13  Cal.,  14  ; 
Whitney  v.  Buckman,  13  Cal..  .538  ;  Warburton  v.  Mattox,  Morris 
(Iowa).  369  ;  Pier  son  v.  David,  1  Clarke  (Iowa),  26  ;  Camp  v. 
Smith,  2  Minn..  173  ;  Ho2^e  v.  Stone,  10  Minn.,  141  ^  Bush  v.  Mar- 
shall, 6  How..  U.  S..  288  ;  ,  Threadgill  v.  Pintard,  12  How.,  37  ; 
Flackler  v.  Ford,  24  How..  323  ;  Phelps  v.  Kellogg.  15  111.,  135.) 
We  |;hink  the  plaintitT  was  entitled  to  the  ordinaiy  judgment  for 
a  sale  of  the  mortgaged  property  without  any  exception  of  rights 
subsequently  acquired  liy  the  mortgagor  under  the  homestead  act 
of  1862. 

Jiidgment  reversed,  and  tln^  District  Court   ivstriicted  to  enter 
judgment  in,  accordence  vu'tJi  these  rietvs. 


Fuller  &  Co.  v.  Hunt  et  al.,  appellants. 

Supreme  Court  of  Iowa. — December  'I'erni,  1S77. 

{Firmi  Copp^s  Land  Owner,  Juh/  No..  1S7S.) 

1.  Homestead  :  Under  Cntted  States  government ;  mortgaged  prim-  io  final 
jn-nnf.  —  A  person  who  lias  entered  upon  land  under  the  act  of  Con- 
gress, granting  homesteads  to  settlers,  may  make  a  valid  mortgage 
upon  the  same  prior  to  the  time  when  he  is  entitled  to  make  final 
proof.  1 


Fuller  v.  Hunt.  23S 

;    ;    Mortgage  ;    is   not   alienation. — The   execution   of   a 

mortgage  upon  land  is  not  alienation  of  it,  within  the  meaning  of  the 
act  of  Congress  granting  liomesteads  to  settlers  on  the  public  lands. 
Mortgage  of  by  husband  ;  not  valid  against  wife  ;   good  against 


grantee  of  mortgagor. — Where  land  is  purchased  of  a  mortgagor  sub- 
ject to  a  mortgage  supposed  to  be  valid,  whether  it  is  so  or  not,  the 
mortgaged  land  becomes  the  primary  fund  for  the  discharge  of  the 
mortgage  debt.  Accordingly,  when  the  husband  made  a  mortgage 
upon  the  homestead,  the  wife  not  joining  in  the  grant,  and  afterward 
the  mortgagor  conveyed  the  land,  subject  to  the  mortgage  :  Held, 
that  the  failure  of  the  wife  to  join  in  the  granting  clause  of  the 
mortgage,  could  not  avail  the  purchaser. 

Appeal  from  Cla}'  District  Court. 

Action  to  foreclose  a  mortgage  executed  by  the  defendant,  CD. 
Hunt.  The  defendant,  M.  E.  Griffin,  is  now  the  owner  of  the  prem- 
ises, having  purchased  and  taken  a  conveyance  of  them  subsequent 
to  the  execution  of  the  mortgage.  He  disputes  the  validity  of  the 
mortgage  upon  two  grounds.  In  the  first  place,  at  the  time  it  was 
executed  the  title  to  the  land  was  in  the  United  States,  and  Hunt 
was  occupying  the  same  in  accordance  with  an  application  and 
affidavit  to  enter  it  as  a  homestead  under  an  act  of  Congress, 
approved  May  20.  1862.  entitled  an  act  to  secure  homesteads  to 
actual  settlers  upon  the  public  domain.  The  five  years  occupancj^ 
had  not  expired,  and  lie  had  not  liecome  entitled  to  make  final 
proof.  In  the  second  place,  he  was  a  married  man.  and  his  wife, 
the  defendant,  M.  E.  Hunt,  did  not  join  in  the  granting  part  of 
the  mortgage,  but  joined  merely  for  the  purpose  of  releasing 
dower,  and  while  the  premises  consisted  of  eighty  acres  it  is 
claimed  that  they  are  not  worth  more  than  $500.  and  so  it  is 
claimed  that  the  mortgage  has  no  validity,  because  the  premises 
constituted  the  mortgagor's  homestead,  and  the  mortgage  was 
virtually  not  executed  on  the  part  of  the  wife.  The  district  court 
held  both  of  these  defenses  to  be  insufficient,  and  entered  a  decree 
of  foreclosure  as  prayed.     The  defendant.  Griffin,  appeals. 

L.  M.  Pemberton  for  appellant. 

/.  A.  b.  Yeoman  and  E.  B.  Soper  for  appellees. 

Adams,  J. : 

I.  The  first  question  presented  is  as  to  whether  a  person,  who 
has  entered  upon  land  under  the  liomestead  act,  can  make  a  \alid 
mortgage  upon  the  same,  prior  to  the  time  when  he  is  entitled 
to  make  final  proof. 


234  Fuller  ?;.  Hunt. 

It  is  claimed  by  the  appellant  that  he  cannot,  because  it  is 
provided  in  the  homestead  act  that  the  land  shall  not  become 
liable  to  the  satisfaction  of  any  debt  or  debts  contracted  prior  to 
the  issnance  of  the  patent.  The  debt  sought  to  be  enforced  was 
contracted  prior  to  the  issuance  of  the  patent.  It  is  abundantly 
evident  that  the  land  could  not  have  been  reached  by  general 
execution  ;  if  the  land  is  liable  at  all.  it  is  by  virtue  of  the  act  by 
which  the  debtor  undertook  to  create  a  special  lien  upon  it.  and 
we  have  to  say  that  we  think  that  the  debtor" s  acts  have  that 
effect ;  mere  exemptions  from  execution  do  not  prevent  the  debtor 
from  creating  such  lien.  Exemptions  are  provided  merely  for  the 
debtors  protection.  Such  is  the  general  rule,  and  such  it  appears 
to  us  is  the  intention  of  the  homestead  act. 

The  only  reason  suggested  why  the  claimant,  under  the 
homestead  act.  should  not  be  allowed  to  mortgage  his  homestead, 
is  that  it  would  be  against  the  public  interest.  But  the  fact 
that  the  act  provides  against  alienation  by  the  claimant,  and 
does  not  provide  against  mortgaging,  unless  alienation  includes 
mortgaging  (a  point  which  will  be  hereafter  considered),  indicates 
that  it  was  not  deemed  to  be  against  the  public  interest  that  the 
claimant  should  mortgage  his  homestead. 

In  Nycum  v.  McAllister,  33  Iowa.  374,  it  was  substantially  so 
held.  It  is  true  that  in  that  case  the  five  years  had  expired  when 
the  mortgage  was  executed,  but  a  patent  had  not  issued.  The 
decision  upholding  the  mortgage  was  based  upon  the  idea  that  the 
provision  of  the  statute  that  the  land  should  not  be  liable  for 
debts  contracted  prior  to  the  issuance  of  the  patent  did  not  pre- 
vent the  debtor  from  creating  by  contract  a  special  lien. 

Mr.  Justice  Beck,  in  delivering  the  opinion,  said  : 
"The  provision  is  intended  as  a  shield  for  the  debtor's  pro- 
tection." The  debts,  then,  from  which  the  land  is  exempted  by 
statute,  must  be  considered  those  which  are  enforceable  against 
it  only  by  general  execution.  We  regard  the  case  above  cited  as 
decisive  of  the  question  in  this  case.  The  fact  that  in  that  case 
the  five  years  had  expired  does  not  render  it  inapplicable  as  an 
authority.  The  land  was  held  liable  for  a  debt  contracted  before 
the  issuance  of  a  patent.  This  necessitated  a  construction  of  the 
statute  which  excluded  from  its  provisions  debts  charged  upon  the 
land  by  the  debtor's  own  contract.  The  question  of  this  expiration 
or  non-expiration  of  the  five  years  affects  merely  the  character  of 


Fuller  v.  Hunt.  235 

the  mortgagors  interest.  But  it  is  not  claimed  by  defendant's 
counsel  that  the  invalidity  of  the  mortgage  results  from  a  want  of 
mortgageable  interest,  but  simply  from  a  disal)ility  imposed  by 
statute  upon  the  mortgagor. 

II.  Another  objection  is  urged  by  the  defendant's  counsel  upon 
the  ground  that  the  claimant  in  making  final  proof  must  show  by 
affidavit  that  he  has  not  alienated  the  land.  The  execution  of  the 
mortgage  it  is  said  is  an  alienation  within  the  meaning  of  the 
statute.  But  we  think  this  is  not  so.  The  giving  of  a  mortgage 
may  result  in  alienation,  but  it  is  not  such  of  itself,  nor  can  it  be 
said  that  the  mortgage  is  given  with  such  purpose.  Land  is  often 
mortgaged  with  the  view  of  obviating  the  necessity  of  alienation. 
The  office  of  a  mortgage  is  simply  to  create  a  lien  under  our 
statute  :  the  legal  title  remains  in  the  mortgagor.  Though  the 
case  would  probably  not  be  different  if  it  passed  to  the  mortgagee. 
A  conveyance  made  merely  to  create  a  lien  lacks  the  essential 
element  of  alienation.  This  has  been  repeatedly  held  in  the  law 
of  insurance.  Roll  ins  v.  CoJumhiun  Iiisiimnre  Co.,  5  Foster.  200  : 
Conorer  v.  Miit'ial  hisiiranre  Co.,  1  Comst.,  290  :  JacJison  v.  Mass. 
MntaaJ  Fire  Insurance  Co.,  23  Pick..  418;  Hnbhard  4^  Spencer  v. 
Hartford  Fire  Insvrance  Co.,  33  Iowa.  333.  So.  also,  it  has  been 
held  that  an  inhil)ition  upon  selling  is  not  an  inhibition  upon 
mortgaging.  Middleton  Savings  Bank  v.  Dubnqne.  15  Iowa,  394  ; 
Krider  v.  Trustees  of  Western  College.  31  Iowa.  o47.  In  Nycum 
v.  McAllister,  as  we  have  seen,  a  mortgage  executed  by  a  claimant 
under  the  homestead  act  before  the  issuance  of  a  patent  was  sus- 
tained. Yet  by  the  act  no  patent  could  issue  except  upon  proof 
by  affidavit  of  the  claimant  that  he  had  not  alienated  the  land. 
And  the  fact  that  such  affidavit  is  required,  renders  void  an 
attempted  alienation.  Oaksx.  Heaton.  44  Iowa.  116.  We  cannot 
then  regard  a  mortgage  as  an  alienation. 

III.  The  mortgage  is  further  assailed  upon  the  ground  that  it 
is  not  sufficient  in  form  to  liind  the  land.  In  respect  to  forty 
acres  of  the  land  it  might  be  conceded  that  this  position  is  well 
taken.  The  mortgagor's  wife  did  not  join  in  the  granting  part  of 
the  mortgage,  and  appears  to  have  signed  merely  for  the  purpose 
of  releasing  dower.  It  was  held  in  Sharp  v.  B((iley.  14  Iowa.  387. 
that  such  an  instrument  does  not  bind  the  homestead. 

It  is  insisted,  however,  that  while  the  mortgage  might  be  invalid 
as  against  the  mortgagor,  or  his  wife,  it  is  not  the  right  of  a  pur- 
chaser from  them  to  set  up  its  invalidity.     Whether  he  could  or 


236  Fuller  v.  Hunt. 

not.  would  depend  upon  wliether  he  purchased  the  land  subject  to 
the  mortgage.  Where  land  is  purchased  of  a  mortgagor  subject 
to  a  mortgage  supposed  to  be  valid,  whether  it  is  so  or  not,  the 
mortgaged  land  becomes  the  primary  fund  for  the  discharge  of  the 
mortgage  debt.  The  theory  is  that  the  amount  of  the  mortgage  is 
deducted  from  the  purchase-money,  and  it  would  be  inequitable  to 
allow  the  purchaser  to  take  advantage  of  the  invalidity  of  the 
mortgage,  and  cast  the  debt  upon  the  vendor  who  has  virtually 
furnished  the  consideration  for  its  discharge.  Nor  is  it  necessary 
in  order  that  the  land  may  stand  primarily  charged  with  the  pay- 
ment of  the  mortgage  debt,  that  the  purchaser  from  the  mortgagor 
should  have  assumed  its  payment.  It  is  sufficient  if  the  land  was 
purchased  suliject  to  the  mortgage,  without  any  personal  liabilitj'^ 
being  assumed  by  the  purchaser.  Green  v.  Turner,  38  Iowa.  112  ; 
Russell  V.  Allen,  10  Paige.  24!) ;  Shuler  v.  Hardin,  25  Ind..  386  ; 
Jones  on  Mortgages,  sec.  736.  The  question  then  is.  as  to  whether 
Griffin  purchased  suliject  to  the  plaintiffs  mortgage.  If  he  had 
taken  a  deed  witli  a  covenant  against  incumbrances,  it  would  be 
presumed  that  he  did  not.  But  he  took  a  quit  claim  deed,  and 
the  consideration  named  is  one  dollar.  It  is  true,  the  evidence 
shows  that  the  real  consideration  was  an  old  indebtedness  due 
him  from  Hunt,  but  the  amount,  to  say  nothing  of  the  value,  was 
not  mixch  greater  than  the  value  of  the  land  above  the  plaintiflf's 
mortgage.  It  appears  also,  that  at  the  time  he  took  the  conve}'^- 
ance  he  had  full  knowledge  of  the  plaintiff's  mortgage.  It  was 
talked  of  between  him  and  Hunt,  and  the  evidence  tends  to  show 
that  it  was  supposed  at  that  time  to  be  a  valid  mortgage.  It 
appears  to  us  that  the  understanding  between  him  and  Hunt  was 
that  he  was  purchasing  and  paying  for  a  mere  equity  of  redemp- 
tion. If  so,  equity  requires  that  as  against  him  the  land  should 
stand  charged  with  the  payment  of  the  mortgage  debt  without 
regard  to  any  infirmity  which  may  inhere  in  the  mortgage,  unless 
the  mortgage  was  void  as  against  public  policy,  and  we  hold  tliat 
it  was  not. 

In    our   opinion   the    decision   of  the    court   below — 

Should  be  (tffirmed. 


1.  A  mortgage  executed  by  the  homestead  settler  after  final  proof  liad 
been  made  but  before  the  patent  issued,  was  held  valid  in  the  following 
cases  :  Wntsnn  v.  Vnorhee^t,  14  Kansas.  328  ;  C/ienei/  v.  White,  5  Neb.,  'if!!  ; 
and  Jones  v.  Yu'ikam,  5  Neb-,  265. 


Jakvis  v.  Hoffman.  237 

Loiis  Jakvis  et  al.  v.  Geokge  W.  IIof?:man  kt  al. 

Siiprome  Court  of   California.— April  Term,  1872. — 4:5  California.  314. 

HOiMESTEAD  ;  PATENT.— Upon  the  death  of  a  husband,  who  has  taken  up 
and  entered  a  homestead,  under  the  act  of  Congress  of  May  2()th, 
18fi2.  if  the  five  years  have  not  ^expired  for  a  patent  to  issue,  the 
widow,  upon  performing  the  remaining  conditions,  is  entitled  to  a 
patent,  and  acquires  a  title  in  fee.  free  from  all  trust  in  favor  of  the 
children,  whetlier  adults  or  minors.! 

Appeal  from  the  District  Court  of  the  Sixth  Judicial  District. 
Yolo  county. 

The  facts  are  stated  in  the  opinion. 

C.  P.  Spragiie  for  appellants. 

It  is  the  theory  of  the  common  law  that  all  property  that  is 
descendible  is  also  devisable.  (4  Kent,  511.)  Is  not  the  reverse  of 
this  proposition  true  ?  Is  not  all  descendible  property  also  devis- 
able ?  If  this  jiroposition  be  true,  the  land  in  controversy  could 
not  descend  to  the  heirs,  from  the  fact  that  St.  Louis,  under  the 
statute,  could  not  have  disposed  of  it  by  will,  or  otherwise.  Our 
statute  appears  to  sanction  the  common  law  rule,  with  the  addi- 
tional provision  that  all  property  devisable  is  subject  to  the  pav- 
ment  of  the  debts  of  deceased  persons.  The  land  in  dispute  not 
being  subject  to  St.  Louis'  debts,  is  neither  devisable  nor  descend- 
ible.    (Ilittell,  7.326.) 

A  State  homestead,  under  our  statute,  is  neither  common  prop- 
erty, subject  to  distribution,  nor  the  separate  property  of  either 
husband  or  wife,  but  is  a  joint  tenancy,  with  the  right  of  survi- 
vorship, and  vests  absolutely  in  the  survivor  immediately  upon 
the  death  of  one  of  the  parties.  .  (Buchanan  Estate,  8  Cal.,  507.) 
This  seems  clearly  to  be  the  intent  of  the  act  of  Congress  of  May 
20th.  1862  :  the  widow  taking  by  right  of  survivorship,  which  is 
analogous  to  "  irregular  succession  "  in  the  civil  law,  defined  to 
be  '-that  which  is  established  by  law  in  favor  of  certain  persons." 
(Bouvier's  Law  Dictionar3^) 

J.  H.  3IcKiine  for  respondents. 

The  questions  of  law  to  be  determined  on  this  appeal  are  : 

I.  Did  the  plaintiff.  Margaret,  by  the  patent  from  the  United 
States  government,  take  the  legal  title  in  her  own  right,  or  as 
trustee  for  all  the  heirs  of  Colbert  St.  Louis,  deceased  ? 

II.  Did  Colbert  St.  Louis  take  the  interest  he  held  in  said  land 
by  gift,  within  the  meaning  of  section  one  of  the  act  passed  April 
17th,  1850,  defining  the  rights  of  husband  and  wife? 


238  Jarvis  v.  Hoffman. 

To  the  first  point  defendants  cite  :  act  of  Congress  May  20tli, 
1862,  2  Lester.  47;  Brenham.  v.  Story.  3'j  Cal.,  179;  Grover  v. 
Haioley,  5  Cal..  485  ;  Soto  v.  Krader,  19  Cal..  87  ;  Bond  v.  Swear- 
ingen,  1  Hammond,  393  ;  Rea  v.  White,  8  Hammond.  216  ;  Ancey 
V.  Dvfiiie,  9  Hammond,  145. 

To  the  second  point  they  cite  :*  act  of  Congress  May  20th,  1862  ; 
Scott  V.  Ward,  13  Cal.,  458  ;  Wilson  v.  C((stro,  31  Cal.,  433  ;  Noe 
V.  Cord,  14  Cal..  596  ;  Hood  v.  HamHtou,  33  Cal..  703. 

B}^  the  conit,  Crockett,  J. : 

In  1864  one  Colbert  St.  Louis  took  up  and  entered  as  a  home- 
stead, mider  the  act  of  Congress  of  May  20th,  1862,  (Stats.  1862, 
p.  392),  a  quarter-section  of  the  public  land  of  the  United  States, 
in  Yolo  county,  and  immediately  entered  upon  and  continued  to 
occupy  and  cultivate  said  tract  as  a  homestead  until  his  death,  in 
1866.  When  he  entered  upon  the  land  as  a  homestead,  he  had  a 
wife  and  several  children,  who  resided  with  him  on  the  tract  until 
his  death,  after  which  tlie  widow  and  children  continued  to  occupy 
and  reside  upon  it  until  the  year  1867,  when  she  intermarried  with 
one  Jarvis,  and  from  thenceforth  she  and  her  husband,  together 
with  the  children,  have  resided  upon  and  occupied  the  land  until 
the  present  time.  At  the  time  of  his  death,  St.  Louis  left  several 
children  by  a  former  marriage,  all  of  whom  have  attained  their 
majority,  and  also  several  children  by  his  last  marriage,  who  then 
were,  and  yet  are  minors. 

At  the  expiration  of  five  years  from  the  time  when  the  land 
was  entered  by  St.  Louis  as  a  homestead,  the  widow,  on  making 
the  proper  proofs,  obtained  a  patent  in  her  own  name  from  the 
United  States,  vesting  in  her  the  legal  title  to  the  premises. 

This  action  is  brought  by  the  widow  and  her  present  husband, 
against  the  adult  and  minor  children  of  her  deceased  husband, 
to  quiet  her  title  to  the  land,  the  fee  of  which  she  claims  to  hold  in 
her  own  right,  and  for  her  own  exclusive  use,  free  from  any  trust 
for  either  the  adult  or  minor  children.  On  the  other  hand,  the 
children,  in  their  answers,  claim  that  she  holds  the  legal  title 
partly,  if  not  wholly,  in  trust  for  them,  and  they  pray  to  have  the 
trust  declared,  and  for  a  partition  according  to  their  respective 
rights.  The  court  below  decided  that  the  widow  was  entitled  to 
eight  twenty -fourths  of  the  land,  and  that  the  children  were  enti- 
tled to  the  remainder,  in  certain  proportions. 

From  this  judgment  the  widow  and  her  husband  have  appealed, 


Jar  VIS  v.  Hoffman.  239 

claiming  tliat  she  is  entitled  to  the  whole.  Section  2  of  the 
homestead  act  provides  "that  no  certificate  shall  be  given,  or 
patent  issued  therefor,  until  the  expiration  of  five  years  from 
the  date  of  such  entry  ;  and  if,  at  the  expiration  of  such  time, 
or  at  any  time  within  two  years  thereafter,  the  person  making 
such  entry,  or,  if  he  be  dead,  his  widow,  or,  in  case  of  ^jer  deaths 
his  heir  or  devisee,  or,  in  case  of  a  widow  making  such  entry,  her 
heirs  or  devisee,  in  case  of  her  death,  shall  prove,  by  credible 
witnesses,  that  he,  she.  or  they  have  resided  upon  or  cultivated 
the  same  for  the  term  of  five  years  immediatel}^  succeeding  the 
time  of  filing  the  affidavit  aforesaid,  and  shall  make  affidavit  that 
no  part  of  said  land  has  been  alienated,  and  that  he  has  borne 
true  allegiance  to  the  government  of  the  United  States,  then,  in 
such  case,  he,  she,  or  they,  if  at  that  time  a  citizen  of  the  United 
States,  shall  be  entitled  to  a  patent,  as  in  other  cases  provided 
for  by  law.  And  provided,  further,  that  in  case  of  the  death  of 
both  father  and  mother,  leaving  an  infant  child  or  children  under 
twenty-one  years  of  age,  the  right  and  fee  shall  inure  to  the 
benefit  of  said  infant  child  or  children  ;  and  the  executor,  admin- 
istrator, or  guardian  ma}',  at  any  time  within  two  years  after  the 
death  of  the  surviving  parent,  and  in  accordance  with  the  laws  of 
the  State  in  which  such  children,  for  the  time  being,  have  their 
domicile,  sell  said  land  for  the  benefit  of  said  infants,  but  for  no 
other  purpose ;  and  the  purchaser  shall  acquire  the  absolute 
title  by  the  purchase,  and  be  entitled  to  a  patent  from  the  United 
States,  on  paj^ment  of  the  office  fees  and  sum  of  money  herein 
specified." 

These  provisions  leave  no  room  for  a  reasonable  doubt  that,  on 
the  death  of  the  husband,  his  widow,  on  performing  the  remain- 
ing conditions  of  occupation  and  payment,  became  entitled  to  the 
patent  in  her  own  name.  The  statute  so  expressly  declares,  and 
it  is  only  in  the  event  that  there  is  no  widow,  or.  if  there  be  one, 
then,  in  the  event  of  her  death,  that  the  patent  shall  go  to  the 
children.  That  this  was  the  intention  of  Congress  is  made  per- 
fectly manifest  by  the  provision  that,  in  case  of  the  death  of 
both  the  father  and  mother,  "  the  right  and  fee  shall  inure  to  the 
benefit  of  said  infant  child  or  children,"  and  by  the  further  pro- 
vision that,  at  any  time  within  two  years  after  the  death  of  the 
surviving  parent,  the  land  may  be  sold  for  the  sole  benefit  of 
such  minor  children,  and  the  purchaser  will  be  entitled  to  a  patent 
in  his  own  name.     But  by  the  very  terms  of  the  act,  even  the 

/ 


240  Jarvis  v.  Hoffman. 

minor  children,  whose  interests  are  so  tenderly  regarded,  will  not 
be  entitled  to  the  right  and  fee  of  the  land,  except  in  the  event 
of  the  deatli  of  both  tlieir  parents.  The  considerations  which 
prompted  these  provisions  doubtless  were  that,  on  the  death  of 
the  father,  the  mother  became  the  head  of  the  family,  and  would 
be  impellvl.  by  her  natural  affection  for  her  children,  to  use  the 
property  for  their  advantage  as  well  as  her  own. 

She  was  deemed  to  be  the  safest  depository  of  the  title,  as  she 
was  the  head  of  the  family  and  the  natural  guardian  of  the 
childreu,  charged  with  their  support  and  maintenance.  It  was 
evidently  the  intention  of  Congress  that,  on  the  death  of  the 
father,  the  mother  should  be  subrogated  to  all  his  rights  in  the 
land,  and  on  performing  the  remaining  conditions,  should  acquire 
and  hold  the  title  precisely  as  he  would  have  held  it  if  he  had 
lived.  But,  if  the  father  and  mother  should  both  die  before  the 
conditions  were  fully  performed,  leaving  minor  children,  the 
right  and  fee  of  the  land  would  immediately  inure  to  their 
benefit,  and  might  be  sold  for  their  use  at  any  time  within  two 
years,  without  the  performance  of  any  further  conditions,  and 
the  purchaser  would  immediately  become  entitled  to  the  patent, 
on  payment  of  the  office  fees,  and  such  other  sum  of  money  as 
might  then  remain  unpaid,  to  the  government  or  its  officers.  But, 
if  the  father  and  mother  should  both  die  before  the  conditions 
were  performed,  leaving  adult  children  or  devisees,  and  no  minor 
children,  then  such  adult  children  or  devisees,  on  performing  the 
remaining  conditions,  would  be  entitled  to  the  patent,  and  thus 
acquire  a  title  in  fee.  But,  when  the  widow  performs  the  condi- 
tions and  obtains  the  patent,  the  statute  attaches  to  it  no  trust  iu 
favor  of  either  the  adult  or  minor  children.  As  already  stated, 
she  takes  the  title  as  her  deceased  husband  would  have  taken  it 
had  he  lived.  In  confiding  the  title  to  her.  Congress  trusted  to 
her  natural  affection  for  her  children  as  the  guaranty  that  she 
would  use  the  land  judiciously  and  for  their  mutual  advantage. 
The  law  annexes  no  conditions  or  trusts  to  her  title,  and  the 
courts  have  no  power  to  do  it;  In  my  opinion,  the  patent  vests 
the  widow  with  an  absolute  title  in  fee  to  the  land,  and  the 
defendants  have  no  interest  therein. 

Jadgment  reversed,  and  cause  remanded  for  a  nerv  tri(d. 

1.  And  it  makes  no  difference  if  she  commutes  under  the  8th  section 
of  the  act,  she  would  still  hold  the  land  in  lier  own  right.  Perry  v. 
Ashhy,  5  Neb.,  291. 


Silver  r.  Ladd.  241 

Silver  c.  Ladd. 
December  Term.  186S.— 7  Wallac*.   2U). 

1.  Tn  constrniag  a  benevolent  statute  of  the  government,  made  for  the 

benefit  of  its  own  citizens,  and  inviting-  and  encouraging  them  to 
settle  on  its  distant  public  lands,  the  words  ''single  man  "  and  "'  mar- 
ried ma/;"  may,  especialljMf  aided  by  the  context  and  other  parts 
of  the  statute,  be  taken  in  a  generic  sense.  i/eW,  accordingly,  that 
the  fourth  section  of  the  act  of  Congress  of  27th  t^eptember,  1850, 
granting  bj"  waj^  of  donation  lands  in  Oreg  n  Territory  to  '•'•every 
white  neMer  or  occupaniy  *  *  *  American  half-breed  Indians  in- 
cluded,"' embraced  within  the  term  single  man  an  unmarried  woman. 

2.  Tlie  fact  that  the  labor  of  cultivating  the  land  required  by  tlie  act  was 

not  done  by  the  manual  labor  of  tlie  settler  is  unimportant,  if  it  was 
done  by  her  servant  or  friends  for  her  benefit  and  under  her  claim. 

3.  Kesidence  in  a  house  divided  by  a  quarter-section  line  enables  the 

occupant  to  claim  either  quarter  in  which  lie  may  ha\e  made  the 
necessary  cultivation. 

4.  In  cases  wher.-  relief  is  sought  on  the  ground  that  the  patent  was 

issued  to  one  person  while  the  right  was  in  another,  the  decree 
should  not  annul  or  set  aside  the  patent,  but  should  provide  for 
transferring  the  title  to  the  person  equitably  entitled  to  it. 

Error  to  the  Supreme  Court  of  Oregon. 

All  act  of  Congress  of  27th  September,  1850,  providing  for  the 
survey  and  for  making  donations  to  settlers  of  public  lauds  in 
Oregon,  commonly  called  the  Donation  Act,  provides  by  a  part 
(here  quoted  verbatim)  of  its  fourth  section  as  follows  : 

"There  shall  be,  and  hereby  is,  granted  to  every  tvJiiie  seitler  or  ocaipavi 
of  the  pubic  lands,  American  half-breed  Indians  included,  above  the  age 
of  eighteen  years,  being  a  citizen  of  the  United  States,  or  having  made 
a  declaration  according  to  law  of  his  intention  to  become  a  citizen,  or 
who  shall  make  such  declaration  on  or  before  the  first  day  of  December, 
IS.Jl,  now  residing  in  said  territory,  or  who  shall  become  a  resident  on 
or  before  the  first  day  of  December,  1850,  and  who  shall  have  resided 
upon  and  cultivated  the  same  for  four  consecutive  years,  and  shall  other- 
wise conform  to  the  provisions  of  this  act,  the  quantity  of  one-half 
section,  or  320  acres  of  land,  if  a  single  man,  and  if  a  married  man  the 
quantity  of  one  section,  or  6-40  acres ;  one-half  to  himself  and  the  other 
half  to  his  w//e,  to  be  held  in  her  own  right ;  and  the  surveyor  general 
shall  designate  the  part  inuring  to  the  husband  and  that  to  the  wife,  and 
enter  the  same  on  the  records  of  his  office.'" 

The  fifth  section  of  the  same  act  is  thus  : 

"That  to  all  white  male  citizens  of  the  United  States,  or  persiMis  who 

17 


242  Silver  v.  Ladd. 

shall  have  made  a  declaration  of  intention  to  become  such,  above  the 
age  of  twentj'-one  j'ears.  emigrating-  to  and  settling  in  said  territory 
between  ist  December,  ISoO,  and  1st  December,  IS.W,  and  to  all  white 
MALE  Awerican  citizens  not  hereinbefore  provided  for,  becoming  twenty- 
one  years  of  age  in  said  territory,  and  settling  there  between  the  times 
last  aforesaid,  who  sliall  in  other  respects  comply  with  the  foregoing 
section  and  the  pro\isons  of  this  law,  there  shall  be,  and  hereby  is, 
granted  tlie  quantity  of  one  quarter-section,  or  160  acres  of  land,  if  a 
single  man^  or  if  married,  or  if  he  shall  become  marriel  within  one  year 
from  tlie  time  of  arriving  in  said  territory,  or  within  one  year  after 
becoming  twenty-one  years  of  age  as  aforesaid,  then  the  quantity  of  one- 
half  section,  or  320  acres  ;  one-half  to  the  husband  and  the  other  half  to 
the  «'//<?,  in  her  own  right,  to  be  designated  by  the  survej^or  general  as 
aforesaid,"  &c. 

Witli  these  provisions  in  force.  Elizabeth  Thomas,  an  aged 
widow,  went  with  her  son,  an  unmarried  man,  to  Oregon  Territory, 
and  settled  there.  They  lived  in  the  same  house.  It  stood  upon 
the  line  dividing  two  pai'cels  of  land,  the  line  running  through 
the  centre  of  the  building.  Cultivation  was  made  on  both  tracts, 
one  being  claimed  by  the  mother,  the  other  by  the  son.  On  the 
17th  of  May,  1861,  the  register  and  receiver  of  the  proper  land 
office  issued  a  donation  certijicate,  declaring  Mrs.  Thomas  to  have 
made  the  proof  which  entitled  her  to  a  patent  for  the  tract  wliich 
she  claimed.  The  son  received  also  a  certificate  for  the  adjoining 
tract,  which  he  claimed.     Thei'e  was  no  dispute  about  that  tract. 

]Mrs.  Thomas  had  been  a  widow  for  more  than  twenty  years 
when  the  settlement  was  made  uiider  which  she  received  the  cer- 
tificate. The  certificate  granted  to  Mrs.  Thomas  was  subsequeijtly, 
June  25.  1832,  set  aside  by  the  Commissioner  of  the  Land  Office, 
on  the  ground  that  she  was  not  tJc  head  of  a  family.  On  appeal 
to  the  Secretary  of  the  Interior  the  action  of  the  commissioner 
was  affirmed,  on  the  ground  that  she  was  not  «,  settler  on  the  land. 
In  January,  1865  (Mrs.  Thomas  being  now  dead  and  the  laud  in 
possession  of  one  Silver,  legal  representatives  of  her  son  and 
only  heir,  Fenice  Caruthers.  who  died  soon  after  her),  the  United 
States  sold  the  land  and  granted  a  patent  for  part  of  it  to  one 
Ladd,  and  for-  the  residue  to  a  certain  Knott.  These  brought 
ejectment  against  Silver  in  the  Circuit  Court  of  the  United  States 
upon  the  patent.  Silver  thereupon  filed  a  bill  in  one  of  the  courts 
of  Oregon  against  them,  setting  forth  the  title  of  Mrs.  Thomas, 
of  her  son,  an-l  of  himself,  representing  that  the  patents  were 


Silver  >\  Lat>d.  243 

clouds  on  the   true  title,  and  praying  an  injunction  against  the 
suit  at  law.     The  prayer  asked  further  : 

"  'I'hat  the  said  patents  may  eacli  be  declared  to  he  fraudident,  and  as 
being  procured  bj'  misrepresentation  and  fraud,  and  in  favor  of  the  rights 
of  plaiutili",  and  that  they  be,  and  each  of  them,  declared  canceled  and  set 
aside,  and  declared  fraudulent  and  void,  and  that  the  claims  of  said 
defendants,  and  each  of  them,  be  adjudged  fraudulent  and  void,  and 
without  authoritj^  of  law,  and  that  the  title  of  the  said  premises  be 
adjudged  to  be  in  the  estate  of  Fenice  Cai-uthers,  deceased,  and  that  the 
same  be  quieted,  and  tliat  the  possession  thereof  be  decreed  to  the 
plaintift"." 

The  court  in  which  the  bill  was  filed  dismissed  it ;  and  on 
appeal  to  the  Supreme  Court  of  Oregon  the  decree  was  affirmed  ; 
that  court  holding  that  the  donation  certificate  was  void,  because 
Mrs.  Thomas,  haA'ing  been  an  unmarried  female,  was  not  such  a 
person  as  could  take  lands  under  the  Donation  Act.  The  question 
here  now  was  the  correctness  of  the  affirmance. 

Mr.  /.  S.  Smith  for  the  plaintiff  in  error. 

The  grounds  taken  by  the  Commissioner  of  the  Land  Office  and 
by  the  Secretary  of  the  Interior  seem  to  be  without  force.  We 
reply  to  the  argument  of  the  Supreme  Court  of  Oregon. 

The  word  man  is  to  be  read  in  a  generic  sense,  and  as  meaning 
person.  There  is  probabl}'  not  an  essay  or  work  of  any  consider- 
able length  published  in  the  English  language,  alluding  to  the 
human  race  that  does  not  employ  the  word  constantly  in  this  way. 
The  words  "he"  and  "man"  are  used  also  frequentlj^  in  acts  of 
Congress  to  denote  both  males  and  females,  especiallj^  in  many 
prohibitory  and  penal  sections.  So.  the  naturalization  laws — like 
this  act  a  voluntary  concession  of  favors — use  the  words  ••  he." 
"him."  and  "man"  constantl}^  to  denote  and  include  both  men 
and  women.  The  expression  ■•  single  man,"  in  this  act  points  to 
the  quantity  of  land  rather  than  the  classification  of  persons. 
3Iick  v.  Mick,  10  Wendell,  371) ;  Svtiiffx.  Forgey,  1  Cowan.  07. 

The  qualifiations  mentioned  in  section  4  are  repeated  in  section 
5,  with  the  addition  of  the  word  "  male."  and  with  a  further  lim- 
itation of  persons,  by  lea^^ng  out  "American  half-breed  Indians." 
The  age  limit  is  also  changed  from  18  to  21  years.  It  is  difficult 
to  avoid  the  conclusion  that  the  difference  in  phraseology  of  the 
two  sections  was  intentional,  and  the  word  "male"  was  inserted 
in  section  5  and  omitted  in  section  4  for  a  purpose.  To  make  a 
word  which  in  common  use  has  both  a  generic  and  specific  mean- 


244  Silver  v.  Ladd. 

ing,  assume  its  specific  meaning  when  such  meaning  is  not  fav- 
ored by  its  position  in  the  context,  and  is  repugnant  to  the  manner 
in  which  the  legislature  have  employed  other  words,  would  make 
Congress  guilty  of  discriminating  in  language  without  a  difference 
in  meaning,  and  is  opposed  to  the  general  spirit  of  the  act. 
P^verywhere,  through  all  is  parts,  the  act  shows  a  liberal  design 
and  disposition  towards  making  provision  for  women. 

If  our  view  is  right,  the  patent  must  be  canceled  as  void.  An 
idea  seems  to  obtain  that  there  is  some  magic  about  a  patent  of 
the  United  States  which  precludes  investigation  of  its  validity. 
But  from  the  beginning,  our  State  courts  have  entertained  a  bill 
to  avoid  a  patent  in  favor  of  previously  acquired  rights,  upon  pre- 
cisely the  same  principles  that  it  would  lie  to  avoid  the  deed  of  a 
private  individual,  and  the  United  States  Supreme  Court  has  taken 
the  same  course  without  exception.  The  only  debatable  ground 
has  been  to  what  extent  and  upon  what  grounds  a  patent  can  be 
attacked  in  a  court  of  law. 

Messrs.  AsJiton,  Caffey,  and  Lander,  contra. 

1.  If  the  word  "man,"  as  used  in  section  4,  is  a  generic  term, 
and  includes  woman  as  well  as  man,  then  it  must  be  a  generic 
term  when  qualified  in  the  same  sentence  by  the  adjective  single, 
as  well  as  when  qualified  by  the  adjective  married.  It  cannot 
have  two  meanings  in  the  same  act,  the  same  section,  the  same 
sentence.  If  by  the  word  man,  man  alone  is  meant,  the  section 
and  sentence  have  force  and  meaning  ;  if  both  are  included,  the 
meaning  of  the  clause  is  destroyed.     It  would  read  thus  : 

"  There  shall  he,  and  hereby  is,  granted  to  evcuy  white  settler  or  occu- 
pant of  the  public  lands.  Amencau  half-breed  Indians  included,  &c.  If 
a  single  man  (or  woman),  and  if  a  married  man  (or  woman\  or  if  he  (or 
she)  shall  become  married  witliin  one  year  from  the  1st  of  December, 
1850,  the  quantity  of  one  section,  or  six  hundred  and  forty  acres,  one-half 
to  himself  (or  herself),  and  the  other  half  to  his  wife,  to  be  held  by  her 
in  her  own  right." 

This  reading  is  absurd  on  is  face. 

2.  The  state  of  the  Territory  of  Oregon  at  the  time  this  law  was 
passed,  and  the  condition  of  its  laws  with  reference  to  land,  forbid 
the  construction  set  up  by  the  appellant.  Oregon,  by  treaty,  was 
open  to  the  joint  occupation  of  the  subjects  of  Great  Britian  and 
the  United  Str.tcs.  Under  the  treaties,  citizens  of  the  United 
States,  as  is  well  known,  have  braved  the  dangers  and  endured 
the  privations  of  an  overland  journey  across  the  continent,  and 


Silver  v.  Ladd.  245 

settled  among  tribes  of  Indians  which  were  both  liostile  and 
treacherous.  Witliout  government  or  protection,  the^^  created  a 
provisional  government,  and  enacted  a  land  law  suitable  to  their 
wants,  and  proper  to  the  condition  of  the  country,  wliere  a  man 
had  to  defend  as  well  as  to  labor  upon  the  land  which  he  claimed 
and  allotted  to  himself.  Under  such  circumstances,  the  words 
"any  person,"  in  the  provisional  land  law,  could  hardly  be 
intended  to  include  a  single  woman.  This  court,  in  StarJt  v.  Starr, 
6  Wallace,  415,  goes  far  to  sustain  the  doctrine  that  Congress  had 
this  land  law  in  view  when  they  passed  the  act  of  '27th  of  Septem- 
ber, 1850.  The  construction  put  upon  the  act  by  the  Supreme 
Court  of  Oregon,  whose  judgment  it  is  now  .sought  to  reverse,  is, 
in  effect,  an  interpretation  of  a  State  law  by  the  courts  of  the 
State  itself. 

3.  Confessedly.  Mrs.  Thomas  was  an  old  woman  when  she  went 
to  Oregon — how  old.  don't  clearly  api)ear.  but  certainly  aged,  she 
could  not  have  made  the  cultivation  required.  In  fact,  she  lived 
in  her  sons  house  ;  he  made  the  settlement,  if  any  was  made, 
but  confessedly  it  was  not  on  this  tract.  He.  not  she,  was  the 
head  of  a  family.  The  objections  of  the  commissioner  and  sec- 
retary are.  therefore,  not  without  force,  though  less  conclusive 
than  those  of  the  Supreme  Court  of  Oregon. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

The  donation  certificate  granted  to  Elizalieth  Thomas  was  set 
aside  by  the  Commissioner  of  the  Land  OHice.  June  25,  1862,  on 
the  ground  that  Elizabeth  Thomas  was  not  the  head  of  a  family. 
On  appeal  to  the  Secretary  of  the  Interior,  the  action  of  the  com- 
missioner was  affirmed,  on  the  ground  that  she  was  not  a  settler 
on  the  land.  The  Supreme  Court  of  Oregon,  whose  judgment  we 
are  now  to  review,  held  the  certificate  void,  because  she  was  not 
such  a  person  as  could  take  lands  under  the  act,  being  an  unmar- 
ried female. 

If.  for  any  of  these  reasons,  the  action  of  the  commissioner 
can  be  sustained,  then  the  judgment  of  the  Supreme  Court  of 
Oregon,  dismissing  plaintiffs  bill,  must  be  aflfirmed.  If  it  cannot, 
then  the  patents  issued  to  defendants  after  the  certificate  of 
Elizabeth  Thomas  was  wrongfully  set  aside,  must  inure  to  the 
benefit  of  plaintiff,  representing  her  equitable  title.  {Lindsey  v. 
Hmves,  2  Black.  554  ;  Garland  v.  Wynn,  20  Howard,  8  ;  Minne- 
sota V.  Bachelder,  1  Wallace,  109.) 


246  Silver  v.  Ladd. 

It  is  upon  the  application  of  the  facts  of  this  case  to  part  of 
section  four  of  the  act  of  1850,  that  the  questions  of  construction 
already  mentioned  arise. 

As  there  is  nothing  in  this  act  which  requires  the  settler  to  be 
the  head  of  a  family,  that  question  may  be  dismissed  without 
further  consideration. 

In  reference  to  the  question  of  actual  settlement  and  resi- 
dence on  the  land,  we  have  only  to  refer  to  the  case  of  Lindsey 
V.  Hemes  (2  Black,  554),  where  this  precise  question  is  raised, 
and  where  it  is  said  that  a  person  residing  in  a  house  which  is 
bisected  by  the  line  dividing  two  quarter-sections,  will  be  held  to 
reside  on  both.  and.  consequently,  on  either  of  them  to  which  he 
may  assert  a  claim.  Nor  is  any  importance  to  be  attached  to  the 
fact  that  Mrs.  Thomas  was  old  and  incapable  of  the  manual 
labor  necessary  to  cultivating  ground.  If  it  was  done  for  li^er  by 
hired  servants,  or  by  her  son.  without  compensation,  it  is  equally 
available  to  her. 

In  reference  to  this  question,  and  to  the  one  next  to  be  con- . 
sidered,  namely,  the  right  of  unmarried  women  to  the  benefits  of 
this  statute,  we  may  apply,  with  added  force,  the  language  used 
in  Liadsey  v.  Hatces,  that  it  concerns  a  construction  of  one  of 
the  most  benevolent  statutes  of  the  government,  made  for  the 
benefit  of  its  own  citizens,  inviting  and  encouraging  them  to  settle 
upon  its  public  lands.  In  addition  to  this,  it  may  be  said  that 
the  section  of  this  statute  which  we  are  now  considering,  was 
passed  for  the  purpose  of  rewarding,  in  a  liberal  manner,  a 
meritorious  class  of  persons,  who  had  taken  possession  of  that 
country  and  held  it  for  the  United  States,  under  circumstances 
of  great  danger  aijd  discouragement.  These  circumstances,  and 
the  policy  of  this  act,  are  fully  stated  in  the  case  of  Stay-k  v. 
Starr  (6  Wallace,  402),  decided  at  our  last  term. 

Anything,  therefore,  which  savors  of  narrowness  or  illiberality 
in  defining  the  class,  among  those  residing  in  the  territory  in 
those  early  days,  and  partaking  of  the  hardships  which  the  act 
was  intended  to  reward,  who  shall  be  entitled  to  its  benefits,  is  at 
variance  with  the  manifest  purpose  of  Congress. 

With  these  views,  we  approach  the  last  and  most  difficult  ques- 
tion in  the  case,  namely,  whether  Mrs.  Thomas  is  excluded  from 
the  benefit  of  this  act  because  she  was  an  unmarried  woman  ? 

The  affirmation  of  this  proposition  is  based  upon  that  clause 
of  the  fourth  section,  which,  in  prescribing  the  quantity  of  land 


Silver  v.  Ladd.  247 

to  be  given  to  each  actual  settler,  says  it  shall  be  '-one-half  sec- 
tion, or  three  hundred  and  twenty  acres,  if  a  single  man,  and  if 
a  married  man,"  six  hundred  and  forty  ^cres.  We  admit  the 
philological  criticism  that  the  words  "single man"  and  '-married 
man,"  referring  to  tlie  conjugal  relation  of  the  sexes,  do  not 
ordinarily  include  females.  And  no  doubt  it  is  on  this  critical 
use  of  the  words  that  the  decision  of  the  Oregon  court  is  mainly 
founded. 

But,  conceding  to  it  all  the  force  it  may  justly  claim,  we  are  of 
opinion  that  it  does  not  give  the  true  meaning  of  the  act  accord- 
ing to  the  intent  of  its  framers,  for  the  following  reasons  : 

1.  The  language  of  the  statute  is,  that  there  is  hereby  granted 
to  "  every  white  settler  or  occupant  of  the  public  lands,  above  the 
age  of  eighteen  years,"  &c.  This  is  intended  to  be  the  descrip- 
tion of  the  class  of  persons  who  may  take,  and  if  not  otherwise 
restricted,  will  clearly  include  all  women  of  that  age,  as  well  as 
men. 

2.  It  is  only  in  prescribing  the  quantity  of  land  to  be  taken, 
that  the  restrictive  words  are  used,  and  even  then,  the  words  used 
are  capable  of  being  construed  generically,  so  as  to  include  both 
sexes.  In  the  case  of  a  married  man,  it  is  clear  that  it  does 
include  his  wife. 

3.  The  evident  intention  to  give  to  women  as  well  as  men.  is 
shown  by  the  provision,  that,  of  the  six  hundred  and  forty  acres 
granted  to  married  men.  one -half  shall  go  their  wives,  and  be  set 
apart  to  them  by  the  surveyor  general,  and  shall  be  held  in  their 
own  right.  Can  there  be  any  reason  why  a  married  woman,  who 
has  the  care  and  protection  of  a  husband,  and  who  is  incapable  of 
making  a  separate  settlement  and  cultivation,  shall  have  land 
given  to  her  own  use,  while  the  unprotected  female,  above  the  age 
of  eighteen  years,  who  makes  her  own  settlement  and  cultivation, 
shall  be  excluded  ? 

4.  But,  a  comparison  of  the  manifest  purpose  of  Congress,  and 
the  language  used  by  it  in  section  four  of  this  statute,  with  those 
of  section  five,  will  afi"ord  grounds  for  rejecting  the  interpretation 
claimed  by  defendants,  which  are  almost  conclusive. 

The  first  of  these  sections  applies,  as  we  have  already  said,  to 
that  meritorious  class  who  were  then  residing  in  the  territory,  or 
should  become  residents  by  the  first  of  December  thereafter.  It 
extends  to  persons  not  citizens  of  the  United  States,  to  persons 
only  eighteen  years  old,  and  gives  to  each  a  half-section  of  land. 


248  Silver  v.  Ladd. 

The  fifth  section  makes  a  donation  of  half  this  amount  and  is 
restricted  to  citizens  of  the  United  States,  or  those  wlio  have 
declared  their  intention  to  become  citizens,  and  to  persons  over 
twenty-one  years  of  age.  But  what  is  most  expressive  in  regard 
to  the  matter  under  discussion  is,  that  the  very  first  line  of  that 
section,  in  which  the  class  of  donees  is  described,  uses  the  words 
"white  male  citizens  of  the  United  States."  Now,  when  we  reflect 
on  the  class  of  persons  intended  to  be  rewarded  in  the  fourth 
section,  and  see  that  words  were  used  which  included  half- 
breeds,  foreigners,  infants  over  eighteen,  and  which  provided 
expressly  for  both  sexes  when  married,  and  used  words  capable 
of  that  construction  in  cases  of  unmarried  persons,  and  observe 
that  in  the  next  section,  where  they  intend  to  be  more  restrictive, 
in  reference  to  quantity  of  land,  to  age  of  donee,  citizenship,  &c., 
they  use  apt  words  to  express  this  restriction,  and  then  use  the 
words  "white  males"  in  reference  to  sex,  we  are  forced  to  the 
conclusion  that  they  did  not  intend,  in  section  four,  the  same 
limitation  in  regard  to  sex,  which  they  so  clearl}'  expressed  in 
section  five.  The  contrast  in  the  language  used  in  regard  to  the 
sex  of  the  donees  in  the  two  sections,  is  sustained  throughout  by 
the  other  contrasts  in  age  and  character  of  the  donees,  and  in 
quantity  of  land  granted. 

The  certificate  of  Mrs.  Thomas  was,  therefore,  properly  issued 
by  the  register  and  receiver,  and  conferred  upon  her  the  equitable 
right  to  the  land  in  controversy,  and  the  decree  of  the  Supreme 
Court  of  Oregon  must  be  reversed. 

But  the  language  of  the  prayer  of  this  bill  for  relief,  and  some 
remarks  in  the  brief  of  counsel,  call  for  comment  on  the  proper 
decree  to  be  rendered  on  the  return  of  the  case  to  that  court. 

The  relief  given  in  this  class  of  cases  does  not  proceed  upon 
the  ground  of  annulling  or  setting  aside  the  patent  wrongfully 
issued. .  That  would  leave  the  title  in  the  United  States,  and  the 
plaintiff"  might  be  as  far  from  obtaining  justice  as  before.  And 
it  may  be  well  doubted  whether  the  patent  can  be  set  aside  with- 
out the  United  States  being  a  party  to  the  suit.  The  relief 
granted  is  founded  on  the  theory  that  the  title,  which  has  passed 
from  the  United  States  to  the  defendant,  inured  in  equity  to  the 
benefit  of  plaintiff;  and  a  court  of  chancery  gives  effect  to  this 
equity,  according  to  its  forms,  in  several  ways.  {Jackson  v. 
Laivton,  10  Johnson,  24;  Boggs  v.  Mining  Company,  14  Califor- 
nia, 363-4.) 


Davenport  v.  Lamb.  249 

The  most  usual  mode  under  the  chancery  practice,  unaffected 
by  statute,  is  to  compel  the  defendant,  in  person,  to  convey  to 
plaintiff,  or  to  have  such  conveyance  made  in  his  name,  by  a  com- 
missioner appointed  by  the  court  for  that  purpose.  ■  In  some  of 
the  States  it  is  provided  by  statute  that  a  decree  of  the  court 
shall  operate  as  a  conveyance  where  it  is  so  expressed  in  the 
decree,  and  additional  relief  may  be  granted  by  giving  possession 
of  the  land  to  plaintiff,  quieting  his  title  as  against  defendants, 
and  enjoining  them  from  asserting  theirs. 

The  prayer  for  general  relief  in  tlie  l)ill  in  this  case  is  sufficient 
to  justify  any  or  all  these  modes  of  relief,  and  the  case  is — 

Remanded  to  the  Supreme  Court  of  Or ey on  for  that  purpose. 


Davenport   c.  Lamb  et  al. 
December  Terra,  1871.— 13  Wallace,  418. 

1.  The  act  of  Congress  of  1836  authorizing  tlie  issue  of  patents  for  land 

in  the  name  of  deceased  parties,  wlio  in  their  lifetime  became  entitled 
to  such  patents,  applies  to  patents  under  the  act  of  Congress  of  Sep- 
tember 27th,  1850,  called  the  Donation  Act  of  Oregon;  and  such 
patents  enure  to  the  parties  designated  in  the  Donation  Act,  and  not 
soley  to  the  parties  designated  in  the  act  of  1836. 

2.  The  Donation  Act  declared  that  iq  case  husband  or  wife  bhould  die 

before  a  patent  issues,  the  survivor  and  children,  or  heirs,  should  be 
entitled  to  the  share  or  interest  of  tlie  deceased  in  equal  proportions, 
\  except  where  the  deceased  should  otlierwise  dispose  of  the  property 
by  will ;  held  that  each  of  the  children,  and  the  surviving  husband 
or  wife,  took  equal  shares,  and  tliat  the  property  of  the  deceased 
was  not  to  be  divided  so  as  to  give  one-half  to  the  surviving  husband 
or  wife,  and  the  other  half  to  the  children  or  heirs  of  the  deceased. 

3.  A  covenant  to  "warrant  and  defend  "  property  for  which  a  quit-chiim 

deed  is  executed  "against  all  claims,  the  United  states  excepted," 
only  applies  to  claims  from  other  sources  than  tlie  United  States.  It 
does  not  cover  any  interest  of  the  United  States,  nor  preclude  its 
acquisition  b}"  tlie  eonveuantors  or  their  heirs  for  tliemselves. 

4.  A  covenant  that  if  the  grantors  "obtain  the  fee  simple"  to  property 

conveyed  "from  the  government  of  the  United  States  they  will  con- 
vey the  same"  to  the  grantee,  his  heirs,  or  assigns,  "by  deed  of 
general  wrranty  "  only  takes  effect  in  case  the  grantors  acquire  the 
title  directly  from  the  United  States,  and  does  not  cover  the  acqui- 
sition of  the  title  of  the  United  States  from  any  intermediate  party. 

Appeal  from  the  Circuit  Court  for  the  District  of  Oresfon. 


.250  Davenport  v.  Lamb. 

Emma  Lamb  and  Ida  Squires,  asserting  themselves  as  grand- 
daughters of  one  Daniel  Lownsdale,  to  own  each  an  undivided 
one-tenth  of  "the  south  half  of  Block  G"  in  Portland.  Oregon, 
filed  a  bill  against  their  co-heirs  and  persons  claiming  under  them 
for  a  partition  ;  one  Davenport,  who  set  up  a  title  adverse  to  them 
all,  being  made  a  i)art3^  defendant,  and  the  real  matter  in  issue 
being  the  validity  of  the  title  set  up  by  him. 

This  case  was  thus  : 

On  the  25th  of  June,  1850,  Daniel  Lownsdale,  Stephen  Coffin, 
and  W.  W.  Chapman,  were  the  owners  of  a  land  claim,  embracing 
a  portion  of  the  tract  upon  which  the  city  of  Portland  is  situated. 
The  legal  title  to  the  property  was  then  in  the  United  States,  but 
the  parties,  asserting  their  claim  to  the  possession  under  the  law 
of  the  provisional  government  of  the  territory,  expected  that  legis- 
lation would  be  taken  at  an  early  day  by  Congress  for  the  transfer 
of  the  title  to  them,  or  some  one  of  them.  This  expectation  of 
legislation  on  their  behalf  was  common  with  all  occupants  of  land 
in  Oregon,  whose  rights  were  merely  possessory,  the  fee  of  the 
entire  land  in  the  territory  being  in  the  United  States.  With  this 
expectation  these  claimants,  on  the  day  named,  executed  a  deed 
to  Chapman,  one  of  their  own  number,  of  numerous  lots  and  blocks 
in  Portland,  into  which  a  portion  of  their  claim  had  been  divided, 
including  among  them  the  already  mentioned  south  half  of  block 
G,  the  subject  of  the  bill.  The  deed  purported  for  the  consid- 
eration of  $60,000,  to  "release,  confirm,  and  quit-claim"  to  Chap- 
man, liis  heirs  and  assigns,  the  described  property  ;  and  contained 
two  covenants  on  the  part  of  the  grantors — one,  to  warrant  and 
defend  the  property  to  their  grantee,  his  heirs  and  assigns  "  against 
all  claims  except  the  United  States;"  and  the  other  ''that  if  they 
obtain  the  fee-simple  to  said  property,  froTti  the  government  of  the 
United  States,  they  will  convey  the  same  "  to  the  grantee,  his  heirs 
or  assigns,  "6t/  deed  of  general  warranty.'"  The  interest  thus 
acquired  by  Chapman  in  the  south  half  of  block  G,  was  after- 
wards assigned  by  various  mesne  conveyances  to  the  defendant, 
Davenport. 

At  the  time  this  deed  was  executed  Lownsdale  was  a  widower 
having  three  children,  named  James,  INLiry,  and  Sarah  (mother  of 
the  two  persons  complainants  in  the  bill.)  At  the  same  time  there 
lived  in  the  same  town  a  widow  named  Nancy  Gillihan,  having 
two  children,  called  William  and  Isabella.     In  July,  1850,  the 


Davenport  v.  Lamb.  251 

widower  and  the  widow  intermarried,  and  they  had,  as  the  issue 
of  this  marriage,  two  children,  named  Millard  and  Kuth. 

On  the  27th  of  September,  1850,  Congress  passed  the  act,  which 
is  generally  known  in  Oregon  as  the  Donation  Act,  and  under 
which  the  title  to  a  large  portion  of  the  real  property  of  tlie  State 
is  held.  It  is  entitled  "An  act  to  create  the  office  of  surveyor 
general  of  the  public  lands  of  Oregon,  and  to  i)rovide  for  the 
survey  and  to  make  donations  to  the  settlers  of  the  said  public 
lands."     (9  Stat,  at  Large,  49G.) 

By  the  fourth  section  of  this  act  a  grant  of  land  was  made  to 
every  white  settler,  or  occupant  of  the  public  lands  in  Oregon, 
above  the  age  of  eighteen  years,  who  was  a  citizen  of  the  United 
States,  or  had  made  a  declaration  according  to  law  of  his  intention 
to  become  a  citizen,  or  should  make  such  declaration  on  or  before 
the  first  day  of  December,  1851,  and  who  was  at  the  time  a  resi- 
dent of  the  territory,  or  might  become  a  resident  on  or  before  the 
1st  of  December,  1850,  and  who  should  reside  upon  and  cultivate 
the  land  for  four  consecutive  years,  and  otherwise  conform  to  the 
provisions  of  the  act.  The  grant  was  of  320  acres  of  land,  if  the 
settler  or  occupant  was  a  single  man,  but  if  a  married  man,  or  if 
he  should  become  married  within  a  year  from  the  1st  of  December, 
1850,  then  the  grant  icus  of  640  acres,  one -half  to  himself  and  the 
other  half  to  his  icife,  to  be  held  by  her  in  her  oicn  right. 

By  the  same  section  the  surveyor  general  was  required  to  desig- 
nate of  the  land  thus  granted  the  part  enuring  to  the  husband  and 
the  part  enuring  to  the  wife,  and  to  enter  the  same  on  the  records  of 
his  office ;  and  it  was  provided  that  in  all  cases  where  such  mar- 
ried persons  complied  with  the  provisions  of  the  act  so  as  to  entitle 
them  to  the  grant,  whether  under  the  previous  provisional  govern- 
ment or  afterwards,  and  either  should  die  before  the  issue  ofapjateiit, 
''the  survivor  and  children,  or  heirs,  of  the  deceased,  shall  be  entitled 
to  the  share  or  interest  of  the  deceased  in  equal  proportions,"  except 
wften  the  deceased  should  otherwise  dipose  of  the  same  by  will. 

Under  this  act  Lownsdale  was  a  donation  claimant,  and  dated 
the  commencement  of  his  settlement  on  the  22d  of  September, 
1848.  This  settlement  became  complete  on  the  22d  of  September, 
1852,  at  the  expiration  of  the  four  years  prescribed.  The  proof 
of  the  commencement  of  the  settlement  and  of  the  continued  resi- 
dence and  cultivation  required  by  the  act  was  regularly  made  ; 
and  of  the,  land  the  east  half  was  assigned  to  Lownsdale  and  the 
west  half  to  his  wife  Nancy.     Within  the  portion  thus  assigned 


252  Davenport  v.  Lamb. 

to  the  wife  the  premises  in  controversy  were  included.  The  tract 
thus  claimed  and  settled  upon  embraced  a  fraction  over  178  acres, 
and  for  it.  in  October,  1880,  a  patent  certificate  was  given  to 
Lownsdale  and  his  wife  ;  and  in  June.  ISnf),  a  patent  of  the  United 
States  was  issued  to  them,  giving  and  granting  in  terms  to  Daniel 
Lownsdale  the  east  half  of  the  property,  and  to  his  wife,  Nancy 
Lownsdale,  the  west  half. 

Nancy  died  in  April,  1854,  before  the  issue  of  the  patent,  leav- 
ing the  four  children  already  mentioned — two,  William  and  Isabella 
Gillihan,  by  lier  first  husband,  and  two.  jMillard  and  Kuth  Lowns- 
dale, by  her  second.  These  four  children  and  her  surviving  hus- 
band Daniel  became  entitled  to  her  interest  in  the  tract  set  apart 
to  her ;  though  in  what  shares  the  husband  took  as  respected  the 
children,  whether  one-half  or  only  one-fifth,  was  one  of  the  ques- 
tions in  the  case. 

In  January,  1860,  Daniel  purchased  the  interest  of  Isabella 
Gillihan.  He  himself  died  in  May,  1862,  intestate,  leaving  as  his 
heirs  the  four  children  already  named — that  is  to  say,  James  and 
Mary,  by  his  first  wife,  and  INIillard  and  Ruth  by  his  second  wife  ; 
and  also  two  children  (the  complainants  in  this  case)  of  his  deceased 
daughter  Sarah,  by  his  first  wife.  The  four  children  living,  each 
inherited  one  undivided  fifth  of  their  fathers  estate,  and  the  two 
childi'en  of  the  decased  daughter,  each  one  undivided  tenth. 

In  1864,  William  Gillihan.  one  of  the  children  of  Nancy,  brought 
suit  in  one  of  the  courts  of  the  State  of  Oregon  for  partition  of 
the  tract  set  apart  to  Nancy  as  above  mentioned — called  the  Nancy 
Lownsdale  tract — making  defendants  the  heirs  of  both  Daniel  and 
Nancy,  and  numerous  other  persons  purchasers  and  claimants 
under  Daniel.  By  the  decree  in  that  case  it  was  among  other 
things  adjudged  that  Daniel  was  the  owner  of  an  undivided  two- 
fifths  of  the  entire  Nancy  Lownsdale  tract,  and  that  the  said 
William  Gillihan  and  Ruth  and  Millard  Lownsdale,  as  heirs  of 
Nancy  Lownsdale,  deceased,  were  each  entitled  to  an  undivided 
one-fifth  of  the  whole  of  said  tract,  and  certain  portions  of  said 
tract  were  decreed  and  set  apart  to  the  said  William,  Ruth,  and 
Millard,  to  be  held  by  them  in  severalty,  and  the  residue  of  said 
tract  was  set  apart  and  allotted  to  the  heirs,  vendees,  or  claimants 
under  Daniel,  according  to  their  respective  interests,  without,  how- 
ever, determining  the  extent  of  the  respective  rights  and  interests 
of  the  heirs  and  vendees  or  claimants  between  themselves  ;  and 
bj'^  reason  of  the  said  partition  not  being  equal,  owelty  was  allowed 


Davenport  v.  Lamb.  253 

to  AVilliara,  Millard,  and  Ruth.  The  portion  set  apart  to  the  licirs, 
and  vendees  or  claimants,  under  Daniel,  included  the  south  half 
of  block  G,  the  premises  in  controversy'. 

Two  granddaughters  of  Lownsdale,  through  his  daughter  Sarah, 
now  deceased,  assumed  accordingly  tliat  through  their  mother,  this 
Sarah,  they  owned,  together,  her  undivided  one-fifth  of  the  south 
half  of  the  block  G  ;  each  of  them,  of  course,  an  undivided  one- 
tenth. 

Davenport  denied  such  their  ownership,  asserting  that  he  him- 
self owned  the  whole  of  the  south  half  of  the  block  ;  or,  if  not 
the  whole,  then  five-eighths  ;  and,  if  not  five-eighths,  then  one-half; 
either  one  of  which  latter  interests  in  himself  being  inconsistent, 
like  the  first,  with  that  of  one-fifth  in  the  said  two  granddaughters. 

I.  Davenport  founded  his  ownership  apparently  of  the  ichole 
of  the  south  half  in  part  on  the  first  of  the  covenants  (quoted 
supra),  in  the  deed  of  June  25th,  1850,  to  Chapman,  through 
whom  he  claimed ;  and  as  much  or  more  on  a  matter  alleged  by 
him,  to  wit,  that  in  1860  Lownsdale  offered  to  sell  him  a  portion 
of  another  block  in  Portland  (block  75).  and  that  he.  Davenport, 
knowing  that  a  difficulty  was  likel}^  to  occur  about  that  and  other 
property,  submitted  to  Lownsdale  a  list  of  all  tlie  propert}-  he 
believed  he  then  rightly  held,  and  among  the  rest  the  south  half 
of  block  G,  and  pointed  out  such  as  he  thought  the  title  of  might 
be  defective  through  him,  and  tliat  Lowndsdale  agreed  verbally 
for  $2,000.  to  give  a  confirmator}- title  to  all  the  property  thus  sub- 
mitted to  him,  '■  that  tie  thought  might  require  it."  Davenport 
accordingly  paid  the  $2,000,  and  Lownsdale  gave  to  him  a  deed 
for  half  of  block  75,  and  also  a  confirmatory  deed  for  cei'tain  other 
lots,  but  not  for  the  south  half  of  block  G  :  that  lot  not  being 
included  among  those  described  in  the  confirmatory  deed,  and  a 
lot  therefore  to  which  Lownsdale,  as  Davenport  considered,  was 
to  be  held  to  have  declared  that  he  had  no  title  in  himself. 

II.  But  if  this  was  not  all  so,  and  if  what  was  thus  alleged  in 
the  nature  of  an  estoppel  in  x>ciis  did  not  exist  or  operate,  Daven- 
port conceived  that  still  he  had  five-eighths  of  the  pi-operty ;  for 
that  (explaining),  he  had  got — 

First.  Four-eighths,  the  trite  share  (as  he  asserted)  of  Daniel  as 
survivor  of  his  wife,  inasmuch  as  under  the  statute  which  gave 
the  wife's  property  to  her  surviving  husband  and  her  children  -in 
equal  proportions."'  Daniel  had  got  one-half  or  four-eighths,  an 
equal  share  with  the  children,  and  not  one-fifth,  the  same  share  as 


254  Davenport  v.  Lamb. 

if  he  were  but  one  of  five  children,  regarded  as  a  claf3s  ;  and  that 
this  one-half  passed  under  the  second  of  the  two  covenants  of  the 
deed  of  June  25th,  1850./ 

Second.  One-eighth — the  eighth,  to  wit,  that  came  from  Isabella 
Gillihan;  for,  that  this  had  been  truly  and  literally  "obtained" 
by  Daniel  "  from  the  government  of  the  United  States,"  though 
indirectly,  and  came  under  the  covenant ;  the  fact,  as  he  assumed, 
that  it  came  through  Isabella,  and  not  directly,  not  affecting  Lowns- 
dale's  obligation  or  that  of  his  heirs  to  convey. 

III.  The  final  and  least  favorable  to  himself  of  Davenport's 
positions  was,  that  if  this  second  fraction  of  title — the  one-eighth, 
Isabella's  share — did  not  pass,  still  that  he,  Davenport,  had  one- 
half;  the  share  of  Daniel  as  got  by  survivorship,  and  under  the 
statute,  as  already  stated,  from  his  deceased  wife  Nancy. 

In  this  state  of  claim  respectively  it  was  that  the  bill  in  this 
case  was  filed  ;  the  complainants  setting  np  a  claim  for  their  one- 
fifth,  and  Davenport  setting  np  his  title  ;  the  matter  already  men- 
tioned as  alleged  by  way  of  estoppel  in  pais,  though  set  out  and 
well  colored  in  his  answer  to  the  bill,  not  being  proved  by  writing 
or  in  some  essential  features  otherwise  than  by  his  own  testimony. 

The  court  below  held  that  Daniel  Lownsdale  became  the  owner 
in  fee  of  two-fifths  (undivided)  of  the  west  half  of  the  Lownsdale 
donation  claim  (being  the  part  allotted  to  Nancy),  including  the 
south  half  of  block  G  ;  one-fifth  by  donation  from  the  United 
States  upon  the  death  of  his  wife  Nancy,  before  the  issue  of  the 
patent,  and  the  other  one-fifth  by  purchase  from  Isabella  Gillihan  ; 
and  that  the  title  to  the  one-fifth  of  the  south  half  of  block  G 
acquired  from  the  United  States  enured  to  Davenport,  by  virtue 
of  the  covenant  in  the  deed  of  June  25th,  1850,  to  Chapman, 
Davenport  deriving  his  interest  under  Chapman  ;  and  that  the 
remaining  four-fifths  in  the  south  half  of  that  block  were  owned 
by  the  four  children  of  Lownsdale  living,  and  the  two  children  of 
his  deceased  daughter  Sarah  ;  and  the  court  decreed  a  partition 
accordingly. 

From  this  decree  Davenport  alone  appealed  to  this  court. 

Mr.  W.  W.  Chapman  for  the  appellant. 

1.  The  decree  is  erroneous,  in  not  giving  to  Davenport  the 
whole  of  the  property  in  controversy,  instead  of  one-fifth  of  it. 

2.  If  not  thus  erroneous,  it  is  erroneous  in  not  giving  five- 
eighths. 


Davenport  v.  Lamb.  255 

3.  And  if  not  erroneous  in  either  respect,  it  is  erroneous  in  not 
giving  to  him  one-half  instead  of  one-fifth. 

1.  Davenport  is  entitled  to  the  tvhole  property.  In  making  the 
decree  below  the  first  clause  in  the  covenant  is  unnoticed,  and 
the  second  (including  tlie  release  obtained  from  Isabella)  is  held 
to  operate  only  upon  the  same  proportional  interest  in  the  block 
which  Lownsdale  obtained  in  the  tract  of  178  acres  as  survivor  of 
his  wife — determined  by  the  court  to  be  only  one-fiftli  of  it — not- 
withstanding the  original  decree  in  partition  had  allotted  to  the 
vendees  and  heirs  of  Lownsdale  the  entire  block. 

The  first  covenant  protects  the  covenantee  and  assigns,  in  the 
possession  against  Lowiisdale  and  all  other  persons,  and  against 
any  title  engrafted  upon  it  through  his  instrumentality.  He  filed 
his  notification,  including  it.  and  dating  his  settlement  and  resi^ 
dence  from  the  •22d  September,  1848,  to  and  including  the  date  of 
the  covenant.  This  appropriated  the  possession  and  the  block  to 
his  own  use,  against  which  he  had  covenanted  to  warrant  and 
defend.  He  was  not  obliged  to  do  this.  He  could  as  easily  have 
omitted  it  as  have  embraced  it,  and  he  knew  when  he  did  so  that 
his  wife  would  thereby  become  entitled  to  an  interest  in  her  own 
right,  and  deprive  the  covenantee  of  the  possession  and  title,  unless 
by  the  happening  of  a  contingency  provided  for  by  the  law  (then 
unlikely  to  occur),  b}^  which  the  title  and  possession  might  revest 
in  him.  In  the  face  of  this  covenant  he  took  this  risk.  In  conse- 
quence of  the  peculiar  form  of  the  covenant,  the  covenantee  might 
not  have  l)een  able  to  maintain  an  action  at  law.  and  because  the 
subject  was,  for  the  time,  supposed  to  be  out  of  reach  of  the  arm 
of  a  court  of  equity.  But  the  contingency  did  happen.  The 
same  possession,  with  a  title  engrafted  upon  it,  thiough  his  instru- 
mentality, revested  in  him,  and  it  is  now  within  the  reach  of  a 
court  of  equity,  perfect  and  complete,  as  contemplated  by  the 
parties  in  the  formation  of  the  second  covenant,  and  therefore 
his  warranty  should  estop  him  and  his  heirs  from  asserting  a 
right  to  the  possession  thus  ripened  into  a  title  through  his  act. 

In  addition  to  this,  the  agreement  between  Davenport  and 
Lownsdale  operated  as  an  estoppel  in  pjais.  The  south  one-half 
of  block  G^  was  not  put  in  the  confirmatory  deed  only  because 
Lownsdale  declared  he  had  no  title  to  it.  Having  received  the 
$2,000  for  confirming  to  Davenport  all  that  he  did  claim,  his 
descendants  ought  not  now  to  be  allowed  to  gainsaj^  his  declara- 
tion. 


256  Davenport  v.  Lamb. 

2.  If  not  entitled  to  ail,  Davenport  is  entitled  to  Jive-eighths. 
The  donation  act  gives  the  property  to  the  husband,  as  one  party, 
an^l  to  the  children  as  the  other,  in  equal  proportions.  Each  thus 
takes  one-half.  This  seems  a  more  natural  construction  than  to 
reduce  the  husband  to  the  grade  of  a  child.  If  this  is  so,  Daven- 
port has  certainly  one-half,  equal  to  four-eighths. 

But  he  has  another  fifth  through  Isabella  under  the  second 
covenant. 

Mr.  G.  H.  WiUiains  contra  : 

Argued  that  the  covenants  to  Chapman  were  joint  and  not  sev- 
eral, and  that  being  in  a  deed  where  he  was  himself  grantor  were 
void  :  that  the  heirs  of  Lownsdale  were  not  named  in  it,  and  that  it 
did  not  bind  them  ;  that  the  covenantors  had  not  obtained  the  fee 
from  the  United  States  ;  but  that  it  was  granted  to  the  heirs  of 
Nancy  Lownsdale,  and  that  if  the  husband's  share  as  survivor  of  his 
wife  was  within  the  covenant,  the  shares  of  the  children  assuredly 
were  not ;  that  these  shares  under  the  Oregon  statute  were  four- 
fifths  ;  the  husband  being  only  entitled  to  an  equal  proportion, 
or  one  fifth,  with  them. 

Mr.  Justice  Field,  after  stating  the  case,  delivered  the 
opinion  of  the  court,  as  follows9 

Neither  of  the  patentees  were  living  at  the  time  the  patent  for 
the  donation  claim  in  this  case  was  issued,  Lownsdale  having 
died  in  May,  18G2,  and  Nancy  having  died  in  April,  1854.  At 
common  law,  the  patent  would  have  been  inoperative  and  void 
from  this  circumstance.  {Gait  v.  Galloiray,  4  Peters,  345 
McDonald  v.  Smalley,  6  Id.,  261  ;  Galloicay  v.  Finley,  12  Id.,  298 
McCrackea's  Heirs  v.  Beall  and  Bowman,  3  A.  K.  Marshall,  210 
Thomas  v.  Wyatt,  25  INIissouri.  26.)  By  that  law,  the  grant  to  a 
deceased  party  is  as  ineffectual  to  pass  the  title  of  the  grantor  as 
if  made  to  a  fictitious  person  ;  and  the  rule  would  apply  equally 
to  grants  of  the  government  as  to  grants  of  individuals,  but  for 
the  act  of  Congress  of  May  20th.  1836  (5  Stat,  at  Large,  31), 
which  obviates  this  result.  That  act  declares  :  "that  in  all  cases 
where  patents  for  public  lands  have  been  or  may  hereafter  be 
issued,  in  pursuance  of  any  law  of  the  United  States,  to  a  person 
who  has  died,  or  who  shall  hereafter  die,  before  the  date  of  such 
patent,  the  title  to  the  land  designated  therein  shall  enure  to  and 
become  vested  in  the  heirs,  devisees  and  assigns  of  such  deceased 


Davenport  v.  Lamb.  257 

during  life.**  This  act  makes  the  title  enure  in  a  manner  ditT'er- 
ent  from  that  provided  by  the  Donation  Act  upon  the  death  of 
either  owner  before  the  issue  of  the  patent,  for  we  do  not  under- 
stand that  the  survivor  of  the  deceased  husband  or  wife  was.  at 
the  time,  his  or  her  heir  b}^  any  law  of  Oregon.  If  the  act  of 
1836  can  be  considered  as  applying  to  patents  issued  under  the 
Donation  Act.  where  the  party  originally  entitled  to  the  patent 
has  died  before  the  patent  issues — and  on  this  point  no  question 
is  made  by  either  party — then  its  language  must  be  construed  in 
connection  with,  and  be  limited  by.  the  provisions  of  the  Dona- 
tion Act.  giving  the  property  of  a  deceased  husband  or  wife  to 
the  survivor  and  children,  or  heirs  of  the  deceased,  unless  other- 
patentee,  as  if  the  patent  had  issued  to  the  deceased  person 
wise  disposed  of  by  will ;  and  in  that  case  the  patent  here  must 
be  held  to  enure  in  favor  of  these  parties  instead  of  the  heirs 
solely. 

The  four  children  of  Nancy  Lownsdale.  the  two  by  her  first 
husband,  Gillihan.  and  the  two  by  her  last  husband,  survived 
her,  and  these,  with  her  surviving  husband,  became  entitled,  on 
her  death,  to  her  property,  in  equal  proportions,  she  having  died 
intestate.  This  is.  indeed,  the  express  language  of  the  statute, 
and  in  consequence,  each  of  the  five  persons  named  took  an  undi- 
vided fifth  interest  in  the  property.  The  learned  counsel  of  the 
appellant,  however,  contends  that  the  statute  should  be  construed 
as  dividing  the  property  equally  lietween  the  survivor  on  the  one 
part,  and  the  children  or  heirs  upon  the  other.  But  the  construc- 
tion we  give  is  the  more  natural  one,  and  is  in  accordance  with 
the  uniform  ruling  of  the  courts.  State  and  Federal,  in  Oregon. 

In  January,  1860,  Lownsdale  purchased  the  interest  in  this 
property  of  Isabella  Gillihan  (then  Isabella  Potter,  she  having 
intermarried  with  William  Potter),  and  thus  became  owner  of  two 
undivided  fifths.  On  his  death,  these  two  undivided  fifths  passed 
to  his  heirs,  he  having  died  intestate,  unless  they  were  controlled 
by  his  covenant  in  the  deed  to  Chapman. 

In  1864  a  suit  was  brought  in  a  circuit  court  of  the  State  of 
Oregon,  by  one  of  the  children  of  Nancy  by  her  first  husband,  for 
partition  of  the  property  which  was  assigned  to  her  of  the  dona- 
tion claim — the  Nancy  Lownsdale  tract,  as  it  is  termed.  In  that 
suit  the  heirs  of  both  Daniel  and  Nancy,  and  numerous  other 
persons,  purchasers  and  occupants  under  Daniel,  and  the  appell- 
ant, Davenport,  were  made  parties.     The  suit  resulted  in  a  decree 

17 


258  Davenpout  v  Lamb. 

setting  off",  so  far  as  practicable,  the  two  undivided  interests  of 
Daniel  to  his  heirs  and  vendees,  in  lots  and  Ijlocks  as  they  were 
claimed,  without  any  determination,  however,  of  the  extent  of 
the  respective  rights  and  interests  of  these  heirs  and  vendees, 
between  themselves  ;  and  in  setting  apart  the  remaining  undi- 
vided three-fifths  in  severalty  to  the  children  of  Nancy,  who  had 
retained  their  interests,  owelty  being  allowed  and  paid  for  the 
inequalities  existing  in  the  partition.  The  tract  set  apart  for  the 
two-fifths  of  Lownsdale,  included  the  premises  in  controversy. 
The  heirs  of  Lownsdale  were  his  two  children  living,  by  his  first, 
wife,  two  children  of  a  deceased  daughter  by  his  first  wife, 
named  Emma  S.  Lamb  and  Ida  vSqitires.  and  his  two  children  by 
his  second  wife.  Against  these  heirs,  the  only  claimant  of  the 
premises  in  controversy  was  the  appellant,  Davenport,  who 
derived  his  interest  by  various  mesne  conveyances  from  Chapman. 
The  present  suit  is  brought  by  the  children  of  the  deceased 
daughter  of  Lownsdale  by  his  first  wife,  they  having  inherited 
her  interest. 

For  its  determination  it  is  necessary  to  consider  the  effect  upon 
the  interest  claimed  by  Davenport  of  the  covenants  contained  in 
the  deed  of  Lownsdale,  Coffin,  and  Chapman,  executed  to  Chap- 
man on  the  25th  of  June,  1850. 

So  far  as  that  instrument  purports  to  be  a  conveyance  from 
Chapman  to  himself,  it  is  of  course  ineffectual  for  any  purpose. 
Its  execution  by  him  left  his  interest  precisely  as  it  existed  pre- 
viously. But  this  superfluous  insertion  of  his  name  in  the  deed 
as  a  grantor,  does  not  impair  the  efficacy  of  the  instrument  as  a 
conveyance  to  him  from  Lownsdale  and  Coffin,  nor  their  covenants 
with  him  and  his  heirs  and  assigns.  These  covenants  must  be 
treated  as  the  joint  contracts  of  the  two  actual  grantors. 

Whether  these  covenants  bind  the  heirs  of  the  covenantors,  they 
not  being  named,  may  perhaps  admit  of  question.  Rawle  on 
Covenants  of  Title,  579  ;  Lloyd  y.mThurshy,  9  Modern,  463  ;  Morse 
V.  Aldrich,  24  Pickering,  450.  The  court  below  held  that  to  the 
extent  that  the  covenants  affected  the  land,  the  heirs  were  bound 
by  them,  and  as  they  have  not  appealed  from  this  decision,  it  is 
unnecessary  for  the  disposition  of  the  case  that  the  question 
should  be  determined  by  us. 

What,  then,  is  the  effect  and  operation  of  the  covenants  ?  The 
first  covenant,  as  already  stated,  is  ''to  vjurrant  and  defend'''  the 
property  released  to  Chapman,  his  heirs  and  assigns  ''against  all 


Davenport  v.  Lamb.  259 

claims,  the  United  States  excepted.'"  At  the  time  this  covenant  was 
executed  the  title  to  the  property  was  in  the  United  States,  and 
this  fact  was  well  known  to  the  parties.  Land  was  then  occupied 
b_y  settlers  throughout  the  Territory  of  Oregon,  under  laws  of  the 
provisional  government,  which  were  generally  respected  and  en- 
forced. These  laws  could  of  course  only  confer  a  possessory 
right,  and  no  one  pretended  to  acquire  any  greater  interest  under 
them.  It  was  against  the  assertion  of  claims  from  this  source 
and  any  other  source,  except  the  United  States,  the  owner  of  the 
fee,  tliat  the  covenant  in  question  was  directed.  By  it  the  grantors 
were  precluded  from  asserting  any  interest  in  the  premises  against 
the  grantee  and  his  heirs  and  assigns,  unless  such  interest  were 
acquired  from  the  United  States.  The  warranty  does  not  cover 
that  interest,  and  did  not  preclude  its  acquisiti  on  by  the  covenantors 
or  either  of  them,  or  bv  their  lieirs.  or  its  enjoj^ment  by  them  or 
either  of  them  when  acquired. 

The  second  covenant  is  that  if  the  grantors  "  obtain  the  fee 
siinple"  to  the  property  •\frovi  the  government  of  the  United  States^ 
they  ivill  convey  the  same "  to  the  grantee,  his  heirs  or  assigns. 
"6»/  deed  of  general  toarranty.'"  This  covenant  is  special  and 
limited.  It  takes  effect  onl}^  in  case  the  grantors,  or  their  heirs 
(if  the  covenant  binds  the  heirs),  acquire  the  title  directly  from 
the  United  States ;  it  does  not  cover  the  acquisition  of  the  title 
of  the  United  States  from  any  intermediate  part}^  and  this  was 
evidently  the  intention  of  the  parties.  They  expected  to  obtain 
by  the  legislation  of  Congress  the  title  of  the  United  States  to 
lands  in  their  possession,  and  in  case  their  expectations  in  this 
respect  were  realized,  thej^  contracted  to  convey  the  same  to  their 
grantee,  or  to  his  heirs  or  assigns.  They  could  not  have  intended, 
in  case  their  expectations  were  disappointed,  and  the  title  passed 
from  the  United  States  to  other  parties,  to  render  it  impossible  for 
them  to  acquire  that  title  in  all  future  time  from  those  parties 
without  being  under  obligation  .  to  instantly  transfer  it  to  the 
grantee  or  his  successors  in  interest.  Comstock  v.  Smith,  13 
Pickering,  116.  And  such  would  be  the  effect  of  their  covenant 
if  it  were  given  an  operation  beyond  the  precise  limitation  specified. 

As  already  stated,  Lownsdale  took  under  the  Donation  Act,  as 
the  survivor  of  his  deceased  wife,  one  undivided  fifth  interest  in 
her  property,  and  he  subsequently  purchased  a  similar  interest 
from  Isabella  Gillihan,  a  daughter  of  his  wife  by  her  first  husband. 
The  interest  which  thus  purchased  is  not  covered  by  the  cove- 


260  Davknport  v.  Lamb. 

covenant.  He  did  not  acquire  it  directly  from  the  United  States. 
Whether  the  interest  which  he  received  as  survivor  of  his  deceased 
wife.  Nancy  Lownsdale,  is  within  the  covenant,  dei)ends  upon  the 
question  whether  he  took  that  interest  by  descent,  as  heir  of 
Nancy,  or  directly  as  donee  from  the  United  States.  The  court 
below  held  that  he  took  as  donee,  and  not  as  heir,  and  that  in 
consequence  the  interest  was  within  the  operation  of  the  covenant, 
and  Davenport,  his  assignee,  was  entitled  to  have  such  interest 
transferred  to  him.  and  that  interest  was  accordingly  set  apart  in 
severalty  to  him. 

Whether  this  ruling  is  correct  it  is  unnecessary  for  us  to  deter- 
mine. The  appellant  does  not  of  course  controvert  it,  and  the 
heirs  of  Lownsdale,  who  alone  could  in  this  case  question  its  cor- 
rectness, have  not  appealed  from  the  decree  of  the  court  below. 

The  parol  evidence  offered  of  an  alleged  contract,  in  1860,  on 
the  part  of  Lownsdale  with  Davenpart.  to  confirm  the  title  of  the 
latter  to  the  whole  of  block  G,  and  of  Lownsd ale's  declarations  at 
that  time  as  to  the  title,  is  entirely  insufficient  to  create  any 
estoppel  i)i  j'xds  against  the  assertion  of  the  interest  claimed  by 
his  heirs  to  portions  of  that  property.  The  alleged  contract  of 
Lownsdale  was  simply  to  confirm  the  title  of  Davenport  to  all 
lands  to  which  he,  Lownsdale.  deemed  the  title  doubtful ;  and  the 
ground  of  complaint  appears  to  be  that  he  did  not  consider  the 
title  of  Davenport  to  block  G  as  doubtful,  and  so  declared,  and 
therefore  did  not  include  that  block  in  the  property  covered  by 
his  confirmatory  deed.  The  declarations  are  at  best  but  the 
expression  of  his  opinion  in  relation  to  a  subject  upon  which 
Davenport  was  equally  well  informed,  or  possessed  equally  with 
him  the  means  of  information.  If  the  evidence  of  such  declara- 
tions could  be  received  years  after  the  death  of  the  party  who  is 
alleged  to  have  made  tliem.  to  control  the  legal  title  which  has 
descended  to  his  heirs,  a  new  source  of  insecurity  in  the  tenure 
of  propert}'  would  be  created,  and  heirs  would  often  hold  their 
possessions  upon  the  uncertain  testimony  of  interested  parties, 
which  it  would  be  difficult  and  sometimes  impossible  to  meet  or 
explain  after  an  interval  of  j^ears.  instead  of  holding  them  upon 
the  sure  foundations  of  the  records  of  the  country.  Biddle  Boggs 
v.  The  Merced  Mining  Co.,  14  California,  367. 

The  decree  of  the  court  below  must  be  Affirmed. 

Note. — 'I'he  act  of  May  20, 1836,  vitalized  the  patent  only  from  the  date 
of  the  act.     It  did  not  make  the  patent  valid  from  its  date.     Wood  v.  Fer- 


LaxMB  v.  Davenport.  261 

ijiisoii.  7  Ohio  St  .  "288.  For  other  cases  under  the  act  see  Sulliravf  w 
HV//V/-.  10  Ohio,  -ilo;    Tremble  \.  Boothby,  14  Ohio,  109. 

I'nder  the  act  of  Au<2^ust  8,  I84(),  granting  hmd  to  the  State  to  aid  in 
tlie  improvement  of  the  Des  Moines  river,  the  Secretary  of  the  Interior 
construed  tlie  grant  to  emhrace  lands  north  of  the  Haecoon  Forl<,  and 
certified  such  lands  to  the  State,  and  they  were  sold  by  the  State. 

in  18.59,  the  Fnited  States  Supreme  Court  deeded  that  such  lands  were 
not  embraced  in  the  grant.  By  act  of  May  2.  1861,  and  July  12,  1862, 
Congi-ess  confirmed  the  title  of  the  purchasers  from  the  State.  Held,  that 
the  confirmation  related  back  to  the  day  of  sale  by  the  State,  and  that 
the  land>  were  subject  to  taxation  from  that  time.  Stri/ker  v.  Folk  Co.^ 
22  Iowa.  131  ;  Litchfiehl  \.  Hamilton  Co..  40  Iowa,  06. 


Lamb  r.  D.WKNPom'. 
October  Term,  1873.— 18  Wallace,  307. 

1.  Unless  forbidden  by  some  positive   law,  contracts  made   by    actual 

settlers  on  the  public  lands  concerning  their  possessory  rights,  and 
concerning  the  title  to  be  acquired  in  future  from  the  United  States, 
are  valid  as  between  the  parties  to  the  contract,  though  there  be  at 
the  time  no  act  of  Congress  bj"  which  the  title  may  be  acquired,  and 
though  the  government  is  under  no  obligation  to  either  of  the  par- 
ties in  regard  to  the  title. 

2.  'The  proviso  of  the  Oregon  Donation  Act  of  September  27tli,  18.50. 

which  forbade  tlie  future  sale  of  the  settler's  interest  until  a  patent 
sliould  i>sue,  so  far  from  invalidating  contracts  for  sale  made  before 
its  passage,  raises  a  strong  implication  in  favor  of  tlieir  validity. 

3.  Wliether  the  huband  or  wife  who  takes  as  survivor  tlie  share  of  the 

deceased  under  the  said  Donation  Act,  takes  as  purchaser  or  by 
inheritance ;  held,  that  contracts  of  the  husband  concerning  the 
equitable  mterest  of  the  part  'allotted  to  him,  made  before  the  act 
was  passed,  are  binding  on  the  title  which  comes  to  his  children  by 
reason  of  a  patent  issued  after  the  death  of  both  husband  and  wife. 

Appeal  from  the  Circuit  Court  for  the  District  of  Oregon  ; 
tlie  case  beino;  this  : 

Prior  to  March  30th.  1849,  one  Lowiisdale  was  in  control  of 
what  was  then  known  in  Oregon  Territory  as  "a  land  claim,"  that 
is  to  say,  he  was  in  possession,  claiming  it  as  owner,  of  a  tract  of 
land.  The  tract  contained  640  acres.  Thinking  it  a  good  site 
for  a  town,  he  laid  it  out  in  blocks  and  lots,  which  he  offered  for 
sale.  Several  lots  were  sold  :  a  town  grew  upon  them,  and  the 
city  of  Portland  now  stands  upon  tlie  -claim." 

At  the  date  named  the  fee  of  the  whole  territory  was  in  the 


262  Lamb  v.  Davenport. 

United  States ;  and,  of  course,  Lownsdale  had  no  patent,  nor 
indeed  an}^  warrant,  survey,  or  title  of  any  kind  from  the  govern- 
ment. Nevertheless  such  "  claims  '"  were  recognized  by  the  immi- 
grants, to  a  greater  or  less  degree  among  themselves.  The  holders 
of  claims  sold  then  in  whole  or  divided  ;  agreeing  to  get  a  patent ; 
and  the  hope  and  expectation  of  all  parties  was  that  the  govern- 
ment, in  time,  would  acknowledge  the  validity  of  what  had  been 
done. 

On  the  30th  of  March,  Lownsdale  transferred  his  claim  to  one 
Coffin,  excepting  from  the  transfer  the  blocks  and  lots  which  he 
had  already  sold.  Coffin  agreed  to  endeavor  to  obtain  title  to  the 
whole  640  acres  from  the  United  States ;  and  both  parties  agreed 
that  they  would  contribute  equally  to  all  expenses,  and  divide 
equally  the  proceeds  of  sales  of  lots,  &c.,  so  long  as  the  agree- 
ment should  remain  in  force,  and  that  when  it  should  be  dissolved 
by  consent  Coffin  should  convey  Lownsdale  one-half  the  land 
remaining  unsold. 

In  November,  1849.  Coffin  sold  to  one  Fowler  two  lots,  which 
were  numbered  Nos.  5  and  6,  in  block  13.  and  Fowler  sold  them 
in  January,  18.54,  to  one  Davenport.  \ 

On  the  13th  of  December,  1849,  Lownsdale  and  Coffin  entered 
into  an  agreement  with  one  Chapman,  by  which,  describing  them- 
selves as  join  owners  of  the  claim,  they  sold  to  him  an  undivided 
third  part  of  it,  the  town  lots  and  improvements  :  it  being  agreed 
that  the  three  contracting  parties  should  be  equal  partners  in  said 
property,  except  as  to  town  lots  already  sold,  and  should  take 
steps  to  obtain  title  from  the  United  States.  They  were  each  to 
enter  upon  the  business  of  selling  the  lots  and  account  to  each 
other  for  the  proceeds. 

On  the  27th  of  September.  1850,  Congress  passed  what  is  called 
•'  The  Oregon  Donation  Act."  (9  Stats,  at  Large.  496.)  By  its 
fourth  section  the  act  gave,  on  certain  terms,  to  every  actual  settler 
(if  a  single  man)  a  certain  amount  of  land.  320  acres  ;  and  if  a  mar- 
ried one,  twice  the  amonnt ;  in  this  latter  case  -  one-half  to  himself 
and  the  other  half  to  his  wife,  to  be  held  by  her  in  her  own  right." 
The  act  went  on  to  say  : 

"And  hi  all  cases  where  *****  either  shall  liave  died  before 
patent  issues,  the  survivor  and  children  or  heirs  of  the  deceased  shall  be 
entitled  to  the  share  or  interest  of  the  deceased  in  equal  proportions, 
except  where  the  deceased  shall  otherwise  dispose  of  it  by  testament." 

It  contained  also  a  proviso,  thus  : 


Lamb  v.  Davenport.  263 

''  Provided,  that  all  future  coiitraets  by  anj-  person  or  persons  entitled 
to  the  benefit  of  this  act.  for  the  sale  of  the  land  to  wliich  he  or  thej-  may 
be  entitled  under  this  aet  Ijefore  lie  or  they  have  received  a  patent  there- 
for, shall  be  void." 

Ill  this  state  of  things  on  the  10th  of  March,  18o2.  and  after 
the  passage  of  the  act,  the  said  three  partners,  by  deed,  reciting 
therein  that  in  order  to  obtain  title  from  the  United  vStates  it  was 
necessary  that  each  shonld  designate  the  precise  and  particular 
portion  of  said  land  claim  which  each,  b}^  agreement  with  the 
other,  claimed,  in  order  thst  he  might  obtain  a  patent,  as  a  pre- 
liminary measure,  entered  into  certain  covenants  with  each  other 
under  seal.  It  was  recited  that  the}-  had  sold  lots  to  eacli  other 
and  to  tbird  persons,  obliging  themselves  to  make  to  tlie  grantees 
deeds  of  general  warranty,  wherein  the  grantor  should  obtain  a 
patent  from  the  United  States,  and  the  said  three  i)arties  mutu- 
ally covenanted  that  each  would  fulfil  all  contracts  he  had  made 
with  each  other  or  with  other  persons,  and  also  that  when  a  patent 
should  be  obtained  he  would  make  good  deeds  for  all  lots  patented 
to  him  which  had  been  sold  by  the  said  parties  jointlj-  or  any  of 
them  separately,  such  deeds  to  be  made  to  the  original  gi-antee  or 
his  assigns.  They  also  covenanted  to  endeavor  to  obtain  title 
from  the  United  States,  and  not  to  abandon  their  claim,  &c. 

On  the  next  day,  Uth  March.  1852,  Lownsdale  made  before 
the  surveyor  general,  under  the  Donation  Act,  his  designation  of 
the  part  of  the  land  claimed  by  him. 

In  January.  1857.  Coffin  (already  mentioned  as  the  person  to 
whom  Lownsdale,  in  March,  184i).  transferred  his  claim)  sold  two 
other  lots,  in  block  13,  Nos.  2  and  7.  to  a  purchaser  who  soon 
afterwards  sold  them  to  Davenport,  who  had  bought,  as  we  have 
said,  Nos.  5  and  6  in  the  same  block. 

Lownsdale  was  a  married  man.  Accordingly,  under  the  Dona- 
tion Act.  Mrs.  Lownsdale  was  entitled  to  320  acres,  and  Lowns- 
dale himself  to  a  like  amount.  ^Mrs.  Lownsdale' s  half  was  set 
aside.  It  did  not  include  the  four  Ipts  sold  by  CotHn  :  but  Lowns- 
dale" s  half  did. 

On  the  17th  day  of  October,  1860.  a  patent  certificate  issued  to 
Lownsdale.  He  died  IVIay  4th,  1862,  his  wife  having  died  not 
long  before  him,  leaving  him  and  four  children  surviving.  By  the 
laws  of  Oregon,  in  such  a  case,  the  wife's  estate  is  directed  to  be 
divided  between    the   husband   and   children   -in   equal   propor- 


264  Lamb  v  Datenport 

tions  ;"  though  whether  this  meant,  in  this  case,  that  the  husband 
should  have  one-half  or  one-fifth  was  not  so  clear. 

On  the  6th  of  January.  1865.  that  is  to  say.  after  Lownsdale's 
death,  a  patent  issued  conveying  to  Lownsdale  his  half  of  the 
tract ;  this  part  including,  as  already  said,  the  lots  5,  6,  2,  and  7. 
in  block  13. 

By  the  common  law,  of  course,  such  a  patent  would  have  been 
void.  An  act  of  Congress  of  May  20th,  1836  (5  Stat.  Large.  31), 
gave  it  validity  be  enacting — 

''  That  in  all  cases  where  patents  for  public  lands  have  been  *  *  * 
issued  to  a  person  who  had  died  *  *  +  before  the  date  of  such  patent, 
the  title  to  the  land  designated  therein  shall  inure  to,  and  be  vested  in 
the  heirs,  devisees,  or  assignees  of  such  deceased  patentee,  as  if  the 
patent  had  issued  to  the  deceased  person  dui-ing  life." 

Whatever  Lownsdale's  intei-est  was.  vested,  therefore,  in  his 
heirs. 

In  this  state  of  tilings.  Lamb  and  others,  who  were  a  portion  of 
his  heirs,  file  a  bill  against  the  residue  of  them,  to  have  a  partition 
of  these  lots,  and  made  Davenport  a  party  as  a  person  in  posses- 
sion and  claiming  the  whole  of  them. 

In  the  progress  of  the  suit.  Davenport  filed  a  cross-bill,  in 
which,  wliile  admitting  the  legal  title  to  the  lots  to  be  in  the 
plaintiffs  and  the  other  heirs  oi'  Lownsdale  before  the  court,  he 
asserted  that  he  was  the  rightful  and  equitable  owner  of  them  and 
prayed  for  a  decree  against  the  lieirs  of  Lownsdale  for  a  convey- 
ance of  tlie  title. 

The  court  decreed  as  prayed  by  Davenport,  and  the  complain- 
ants in  the  original  bill  brought  this  appeal. 

Messrs.  G.  H.  Williams  and  W.  L.  Hill  for  the  appellants. 

Prior  to  the  27th  of  September.  1850.  the  date  of  the  passage 
of  the  donation  law,  neither  party  to  this  controversy,  nor  those 
under  whom  they  claim,  except  the  United  States,  had  any  title 
to,  or  interest  whatever  in.  the  premises  in  dispute,  or  in  said  land 
claim.  This  in  efiect,  was  so  declared  by  the  Supreme  Court  of 
the  United  States  in  the  case  of  Lov-nsdule  v.  Purrish  (21  How- 
ard, 293.)  The  Supreme  Court  of  Oregon,  in  Leland  v.  City  of 
Portland,  (2  Oregon,  48  ;  and  see  Loivnsdale  v.  City  of  Portland, 
Deady,  1),  says  : 

"Any  acts  (of  parties)  before  the  27th  of  September.  ISoO.  affecting 
the  disposal  of  lands  in  Oregon  were  simply  void." 


Lamb  v.  Davenport.  265 

It  follows  that  no  form  of  conveyance  made  i)rior  to  tiie  jjas 
HSi^e  of  the  Donation  Act  could  operate  to  transfer  any  interest, 
either  legal  or  equitable,  in  the  land,  and  that  a  conveyance,  without 
covenants  for  further  assurance,  would  be  ineffectual  for  any  pur- 
pose except  perhaps  to  transfer  the  bare  occupancy.  A  purcliaser 
could  not  have  been  deceived.  He  must  have  known  that  he  c(mld 
obtain  nothing  but  naked  possession,  no  matter  what  the  deed  said. 
Again,  the  fourth  section  of  the  Donation  Act  invalidated  all 
future  sales. 

of  lands  which  the  act  gave,  if  made  before  the  party  got  a  patent. 
The  result  was  that  prior  to  the  27th  of  September.  1850,  parties 
had  no  interest  whatever  in  land  in  Oregon,  and  that  while  after 
that  time  they  could  acquire  the  title  thereto,  their  contracts  for 
the  sale  thereof,  before  their  title  became  complete  under  the  pro- 
visions of  the  act,  were  void.  We  submit,  therefore,  that  Daven- 
port could  derive  no  benefit  from  any  so-called  sale  of  the  four 
lots  in  question  made  subsequent  to  the  aforesaid  date,  nor  claim 
them  on  account  of  any  deed  made  prior  to  that  time  ;  and  that 
all  such  contracts  and  deeds  must  be  construed  in  view  of  this 
condition  of  circumstances. 

This  invalidates  the  whole  of  the  tripartite  agreement  of 
March  10th.  1852.  (the  latest  written  agreement  between  Lowns- 
dale.  Coffin,  and  Chapman) ;  for  it  was  all  made  after  the  passage 
of  the  act. 

The  donation  law  was  not  retrospective  in  its  oi)eration.  nor 
did  it  vest  rights  of  an  equitable  character  which  related  back  to 
the  date  of  the  settlement.  There  is  nothing  in  the  act  that  jus- 
tifies the  position  that  it  did. 

Descending  more  to  particulars,  and  as  to  Davenport :  To  no 
one  of  the  four  lots  did  Davenport  acquire  any  title  till  after  the 
date  of  the  Donation  Act ;  while  as  to  two  of  them,  Nos.  2  and  7, 
even  CoflSn's  conveyance  of  them  was  posterior  to  the  act.  The 
sale  to  him  in  the  case  of  each  one  of  the  four  lots  was  the  sale 
of  lands  by  a  party  who  was  claiming  the  benefits  of  the  Dona- 
tion Act ;  and,  to  say  the  least,  came  within  the  mischief  which 
the  prohibitory  clause  in  question  was  intended  to  prevent. 

Further:  The  agreement  of  March  lOth.  1852,  is  a  deed  inteV' 
partes — Lownsdale,  Coffin,  and  Chapman.  We  know  of  no  ])rin- 
ciple  of  law  which  would  allow  Daveni)ort.  a  person  not  a  party 
to  the  instrument — an  instrument  under  seal,  and  executed  as 
that  evidently  was.  to  settle  and  adjust  the  personal   individual 


266  Lamb  v.  Davenport. 

rio;hts  of  the  i)arties  to  it  as  between  themselves — to  claim  the 
benefit  of  its  provisions  as  a  matter  of  legal  rioht.  (See  Ellison 
V.  Ellison.  1  Leading  Cases  in  Equity.  232.) 

Finall}^ :  Under  the  Donation  Act  the  heirs  of  Lownsdale  (he 
being  dead  before  the  patent  issued)  took  not  by  descent  but  hy 
purchase.  {Fields  v.  Squires,  1  Deady,  382  ;  Delay  v.  Chapman, 
3  Oregon,  459.)     They  took  not  through  him,  but  under  the  act. 

The  land  which  Congress  thus  gave  them  would  not  have  been 
subject  to  his  debts,  nor  is  it  to  his  contracts.  It  never  vested 
in  him.  In  Davenport  v.  LarnJ)  (13  Wallace,  431).  the  Circuit 
Court  held  that  under  the  act  the  husband  did  not  take  as  heir  to 
his  wife,  but  as  statutory  donee  ;  and  this  view  was  not  denied  in 
this  court. 

Messrs.  J.  M.Carlislr  and  ./.  D.  McPherson.  contra. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

There  is  no  question  that  at  the  commencement  of  the  suit  the 
legal  title  to  the  lots  was  in  the  heirs  of  Lownsdale. 

The  equity  which  Davenport  sets  up  in  his  cross-bill  arises 
from  transactions  antecedent  to  the  issue  of  the  patent  certificate 
of  Lownsdale,  and,  indeed,  antecedent  to  the  enactment  of  the  dona- 
tion law  by  Congress,  under  which  Lownsdale' s  title  originated. 

It  is  not  necessary  to  recite  in  this  opinion  all  of  those  trans- 
actions. It  is  sufficient  here  to  say  that  several  years  before  that 
act  was  passed,  and  before  any  act  of  Congress  existed  by  which 
title  to  the  land  could  be  acquired,  settlement  on  and  cultivation 
of  a  large  tract  of  land,  which  includes  the  lots  in  controversy, 
had  been  made,  and  a  town  laid  off  into  lots  and  lots  sold,  and 
that  these  are  a  part  of  the  present  city  of  Portland.  Of  course 
no  legal  title  vested  in  any  one  by  these  proceedings,  for  that 
remained  in  the  United  States  ;  all  of  which  was  well  known  and 
undisputed.  But  it  was  equally  well  known  that  these  possessory 
rights  and  improvements  placed  on  the  soil  were  by  the  policy  of 
the  government  generally  protected,  so  far,  at  least,  as  to  give 
priority  of  the  right  to  purchase  whenever  the  land  was  offered 
for  sale,  and  where  no  special  reason  existed  to  the  contrary ; 
and  though  these  rights  or  claims  rested  on  no  statute  or  any 
positive  promise,  the  general  recognition  of  them  in  the  end  by 
the  government,  and  its  disposition  to  protect  the  meritorious 
actual  settlers,  who  were  the  pioneers  of  emigration  in  the  new 
territories,  gave  a  decided  and  well-understood  value  to  these 


Lamb  v.  Davenport.  267 

claims.  They  were  the  subjects  of  bargain  and  sale.  and.  as 
amono-  the  parties  to  such  contracts,  they  were  valid.  The  right 
of  the  United  States  to  dispose  of  her  own  property  is  undisputed, 
and  to  make  rules  by  which  the  lands  of  the  government  may  be 
sold  or  given  away  is  acknowledged  ;  but.  subject  to  these  well- 
known  principles,  parties  in  possession  of  the  soil  might  make 
valid  contracts,  even  concerning  the  title,  predicated  upon  the 
hyi)othesis  that  they  might  thereafter  lawfully  acquire  the  title, 
except  in  cases  where  Congress  had  imposed  resti'ictions  on  such 
contracts.  {Sparnnr  v.  Stroru/,  3  Wallace.  97  :  Myr^rs  v.  Croft, 
IB  III..  291;  Davenport  v.  LaaiU.  Ih..  418:  ThredrfUl  v.  Pivtard. 
12  Howard,  24.) 

Acting  on  these  principles,  the  tract  of  land  in  question,  valuable 
for  a  town  site,  seems  to  have  become  the  subject  of  contoversies; 
and  of  contracts  and  agreements,  which  culminated  in  an  amicable 
arrangement  between  Lownsdale,  Cotlin,  and  Chapman,  by  which 
the  rights  of  each  were  recognized  and  adjusted  among  themselves. 
The  first  of  these  agreements,  reduced  to  wi'iting,  was  made  before 
the  passage  of  the  donation  law ;  the  last  seems  to  have  been 
made  in  consequence  of  that  enactment,  and  was  evidently  de- 
signed to  give  effect  to  their  previous'  compromise  agreements,  to 
enable  each  to  acquire  under  that  act  the  title  to  the  property, 
according  to  those  agreements,  and  to  protect  each  other  and  their 
vendees  when  the  title  should  have  been  so  acquired.  We  are 
satisfied  tliat  by  the  true  intent  and  meaning  of  these  agreements 
the  equitable  right  to  all  the  lots  in  controversy  had  been  trans- 
ferred by  Lownsdale  to  Coffin  before  the  passage  of  the  Donation 
Act.  and  that  as  between  Lownsdale,  Coffin,  and  Chapman,  the 
equitable  interest,  such  as  we  have  described  it.  of  the  lots  in 
controversy,  was  in  Coffin  or  his  vendees. 

The  record  shows  that  this  interest  or  claim,  whatever  it  was, 
at  the  commencement  of  this  suit  was  vested  in  Davenport,  wliile 
the  legal  title  was  in  the  heirs  of  Lownsdale. 

According  to  well  settled  principles  of  equity,  often  asserted 
by  this  court.  Davenport  is  entitled  to  the  conveyance  of  this 
title  from  those  heirs,  unless  some  exceptional  i-eason  is  found  to 
the  contrary. 

Counsel  for  appellants  urge  two  propositions  as  inconsistent 
with  this  claim  of  right  on  behalf  of  Davenport : 

1.  It  is  said  that  the  jsroviso  to  the  fourth  section  of  the  Dona- 
tion Act  renders  void  tlie  agreements  between  Lownsdale.  Coffin, 


268  Lamb  i.\  Davenport-. 

and  C'hai)iiuin.  Tlie  proviso  referred  to,  declares  that  all  future 
contracts  by  any  person  or  persons  entitled  to  the  benefit  of  this 
act,  for  the  sale  of  the  land  to  which  he  may  be  entitled  under 
the  act.  before  he  or  they  have  received  a  patent  therefor,  shall 
be  void.  The  act  was,  on  its  face,  intended  to  cover  settlements 
already  made,  and  the  careful  limitation  of  this  proviso  to  future 
contracts  of  sale,  that  is.  sales  made  after  the  passage  of  the  act, 
raises  a  strong  implication  of  the  validity  of  such  contracts  made 
l)efore  the  passage  of  the  statute.  It  was  well  known  that  many 
actual  settlers  held  under  such  contracts,  and  while  Congress 
intended  to  protect  the  donee  from  future  imi)rovident  sales,  it 
left  contracts  already  made,  undisturbed. 

But  counsel,  resting  solely  on  the  latest  written  agreement 
between  Lownsdale,  Coffin,  and  Chapman,  insist  that  it  was  void, 
because  made  after  the  Donation  Act  was  passed. 

That  agreement  was  only  designed  to  give  eflTect  to  the  previous 
contracts  on  the  same  subject,  and  is  in  accord  with  the  spirit  of 
the  proviso.  And  if  this  latter  agreement  is  rejected  as  altogether 
void,  it  is  still  apparent  that,  by  the  contracts  made  prior  to  the 
Donation  Act,  the  equitable  right  of  Coffin  to  these  lots  is  suf- 
ficiently established. 

The  same  error  is  found  in  the  argument  that  two  of  the  lots 
in  controversy  were  sold  by  Coffin  after  the  passage  of  that  act, 
and  the  sale  is,  therefore,  void.  The  answer  is,  that  Coffin  is  not 
the  donee  who  takes  title  under  the  act  of  Congress,  but  Lowns- 
dale, and  Lownsdale  had  made  a  valid  agreement  by  which  his 
interest  in  them  was  transferred  to  Coffin,  before  that  statute  was 
passed. 

2.  The  Donation  Act  provides  that  where  the  settler  has  a  wife, 
the  quantity  of  land  granted  is  double  that  to  a  single  man,  and 
that  one-half  of  it  shall  be  set  apart  to  the  wife  by  tlie  surveyor 
general,  and  the  title  to  it  vests  in  her,  and  that  if  either  of  them 
shall  have  died  before  the  patent  issues,  the  survivor  and  children, 
or  heirs  of  the  deceased,  shall  be  entitled  to  the  share  or  interest 
of  the  deceased. 

Lownsdale's  wife  died  first,  and  both  before  the  patent  issued. 
But,  prior  to  the  death  of  either,  Mrs.  Lownsdale's  half  had  been 
set  apart  to  her,  and  did  not  include  the  lots  now  in  controversy. 
It  is  said  that  the  title  vested  in  the  heirs  of  Lownsdale,  under 
the  peculiar  provision  of  this  statute,  is  one  of  jjurchase.  and  not 
of  inheritance,  and  that  it  comes  to  them  directlv  from  the  gov- 


CoFiELD  V.  McClelland.  269 

ernment.  divested  of  any  claim  of  tliird  parties  under  Lownsdale. 

This  proposition  was  much  discussed  in  tlie  case  of  Davenport 
V.  Ldiiih  (13  Wallace.  418.  already  cited),  but  the  court  did  not 
then  find  it  necessary  to  decide  it,  as  the  only  parties  who  were 
entitled  to  raise  the  question,  had  not  appealed  from  the  decree  of 
the  circuit  court. 

Nor  do  we  propose  to  decide,  now.  whether  tlie  title  in  the 
hands  of  the  children  and  heirs  of  Lownsdale  would  be  liable  for 
his  debts,  or  to  what  extent  that  title  might  be  effected  by  the 
contracts  of  Lownsdale.  concernino;  the  land  itself,  made  after 
the  passage  of  the  Donation  Act.  or  after  his  assertion  of  claim 
under  it.  Nor  do  we  decide  whether  the  interest  in  the  wife's 
share  of  the  land,  which  came  to  him  by  survivorship,  would  be 
affected  by  any  contracts  of  his  or  hers,  made  before  her  death, 
at  anj'^  time. 

But  we  iiold  that,  as  to  the  portion  of  the  land  which  was 
allotted  to  him  by  the  surveyor  general,  and  the  title  of  which 
vests  in  his  heirs  by  the  act  of  1836,  without  which  the  patent 
would  be  void,  his  contract  of  sale  made  before  the  Donation  Act 
was  passed,  and  while  he  was  the  owner  of  the  possessory  interest 
l)efore  described,  was  a  valid  contract,  intentionally  protected  by 
the  Donation  Act  itself,  and  binding  on  the  title  which  comes  to 
his  heirs  by  reason  of  his  death. 

These  considerations  dispose  of  the  case  before  us,  and  the 
decree  of  the  circuit  court  is  accordingh-  Affirmed. 

XoTK. — A  covenant  by  a  settler  on  unt^urveyed  land,  that  he  will 
purchase  the  land  as  soon  as  it  is  surveyed  and  offered  for  sale,  and  then 
mortgage  it  to  a  creditor,  will  be  enforced  as  an  equitable  mortgage, 
after  the  party  has  entered  the  land.      Wrighly.  Smnnivai/,  1  Bissell,  2:^. 

For  further  decisions  under  the  Oregon  Donation  Act.  see  Lamh  v. 
Wakefiehh  1  lawyer,  251  ;  Wjithe  v.  Palmer.  :-{  Sawyer,  412  ;  Adams  v. 
Burke,  3  Sawyer,  41a;  Hall  v.  Russell,  ii  Sawyer,  aOO. 


CoFiELD  V.  McClelland. 

December  Term,  1872. — 1(!  Wallace,  ;^3I. 

A  bill  to  compel  a  conveyance  from  a  person  to  whom  the  probate 
judge  of  Arapahoe  county,  Colerado  'J'erritory  (in  which  county  is 
situated  Denver),  had  conveyed  a  lot  in  pursuance  of  the  acts  of 
Congress  of  ^lay  23d,  1844,  and  ^lay  28th.  1864,  for  the  relief  of  the 


270  CoFiELD  r.  McClelland, 

city  of  Denver,  and  of  the  act  of  ('olorado  'rcri-itorv  of   Mai'cli  1  Ulu 
1804,  dismissed  : 

1st.  Because  the  defendant  was  in  possession  of  tlie  lot  in  question 
at  tlie  time  of  tlie  passage  of  the  act  for  tlie  relief  of  tlie  city  of  Den- 
ver, and  at  the  time  of  the  entry  of  tlie  lands  made  by  the  probate 
judge,  by  means  of  which  he  becam(;  and  was  the  party  by  law^ 
entitled  to  the  deed  from  the  probate  judge;  and 

2d,  Because  the  appellant,  by  omitting  to  sign  and  deliver  the  state- 
ment required  by  section  four  of  the  t(,'rritoral  statute,  became  barred 
of  the  right  to  the  lands,  both  in  law  and  equity 
"2.  Notices  required  by  statute  presumed  to  have  been  given  by  a  probate 
judge,  he  having  made  a  conveyance  of  land  which  could  have  been 
properlj'  made  only  after  such  notices  given. 

Appeal  from  the  Supreme  Court  for  the  Territory  of  Colorado  ; 
the  case  being  thus  : 

The  city  of  Denver,  which  is  in  the  county  of  Arapahoe,  Colo- 
rado Territory,  was  origionally  laid  out  by  a  company  or  associ- 
ation of  persons,  on  the  public  domain  of  the  United  States, 
before  the  same  had  been  surveyed  and  became  subject  to  entry. 
And  the  company  was  aided  by  the  privileges  of  pre-emption,  at 
the  miuimun  price,  being  secured  to  settlers  and  occupants  of  lots 
by  thegencral  enactment  of  May  23d,  1844  (5  Stat,  at  Large,  657), 
"for  the  relief  of  the  citizens  of  the  towns  upon  the  land  of  the 
United  States  under  certain  circumstances,"  and  by  a  special 
enactment  "  for  the  relief  of  the  citizens  of  Denver,"  of  the  28th 
of  May,  1864(13  Stats,  at  Large,  94),  whereby  the  probate  judge 
of  the  county  was  constituted  a  trustee  to  enter  the  land  ^.selected 
for  the  site  of  the  town,  when  the  same  became  subject  to  entry, 
and  to  pass  the  legal  title  to  the  settlers  and  occupants  of  lots, 
under  rules  and  regulations  prescribed  by  the  legislative  authority 
of  the  Territory  of  Colorado, 

These  acts  being  in  force,  the  probate  judge  of  Arapahoe  county 
having,  on  the  6th  of  May,  1865,  entered  the  town  side  under  the 
acts  referred  to,  on  the  10th  of  May,  1865,  and  in  accordance  with 
the  directions  of  a  Territorial  Act  of  Colorado,  of  March  11th, 
1864,  advertised  for  four  weeks  thereafter  in  a  weekly  newspaper 
published  at  Denver,  (though  whether  also  by  posting  notices  in 
three  public  places  in  the  town,  which  a  Territorial  Act  of  Colo- 
rado required,  did  not  appear,  the  judge  himself  being  dead),  the 
fact  that  he  had  made  the  said  entry,  and  that  all  claimants  of 
lots  in  the  town  should  within  ninety  days  present  their  claims 
to  him. 


CoFiELD  V.  McClelland.  271 

Mrs.  Louisa  McClelland,  then,  as  the  evidence  in  the  case  went 
sti'ongly  to  show,  in  occupation  of  lot  No.  6,  block  69,  in  Denver, 
and  who  had  erected  valuable  improvements  on  it,  and  was  then 
pajang  taxes  upon  it — all  without  apparent  knowledge  of  any 
counter-claim — accordingly  presented  her  claim  for  the  said  lot. 
and  there  being  no  counter-claim  made  to  it  by  any  one,  the  pro- 
bate judge,  on  the  11th  of  August,  1865,  conveyed  the  said  lot 
to  lier.  She  being  thus  in  possession,  one  Cofield,  in  April,  1869, 
filed  a  bill  against  her  to  compel  a  conveyance  to  liim.  The  bill 
alleged  an  equitable  title  to  the  lot  in  the  complainant  b}^  the  occu- 
pation and  possession  ;  a  prior  settlement,  to  wit :  \iy  a  certain 
Preston,  in  1859,  a  conveyance  by  Preston  to  one  Hall,  and  after 
several  intermediate  conveyances,  by  which  the  lot  came  to  one 
Bates,  a  conveyance  by  Bates  to  the  complainant  in  1869.  (There 
was  also  an  allegation  of  collusion  with  the  probate  judge,  but  this 
was  denied  on  the  answer,  being  whollj'^  disproved,  and  being 
put  aside  by  the  court,  need  not  be  noticed.) 

The  court  below  having  dismissed  the  bill,  the  complainant 
took  this  appeal. 

Mr.  J.  M.  Wooltrorth  for  the  appellant. 
Messrs.  Bartlep  4-  Casey  contra. 

Mr.  Justice  Hunt  delivered  the  opinion  of  the  court. 

The  territory  upon  which  stands  the  city  of  Denver,  Colorado, 
was  entered  upon,  occupied  and  possessed  b}^  numerous  persons 
before  the  same  was  surveyed  and  had  become  subject  to  public 
entry.  Occurrences  like  the  one  which  gives  rise  to  this  bill, 
seem  to  have  been  common,  and  the  rights  of  the  parties  were 
protected  and  regulated  by  an  act  of  Congress  passed  May  23d, 
1844.  A  special  act  was  also  passed  by  Congress  on  the  28th  of 
May,  1864,  -'for  the  relief  of  the  citizens  of  Denver."  It  is  b}^ 
the  principles  prescribed  in  these  several  statutes  that  the  rights 
of  the  parties  in  this  suit  are  to  be  determined. 

The  first  of  the  acts  to  which  reference  has  been  made  (May 
23d,  1844,  5  Stat,  at  Large,  657),  authorizes  the  probate  judge  to 
enter,  at  the  proper  land  office,  the  land  settled  and  occupied  by 
such  occupants  of  a  town  or  city.  It  is  also  enacted  that  such 
entry  by  him  shall  be  "  in  trust  for  the  several  use  and  benefit  of 
the  occupants  thereof,  according  to  their  respective  interests,  the 
execution  of  which  trust  as  to  the  disposal  of  the  lots  in  such 
town,  and  the  proceeds  of  the  sale  thereof,  to  be  conducted  under 


272  CoFiELD  V.  McClelland. 

such  rules  and  ret^ulations  as  may  be  prescribed  by  the  legislative 
authority  of  the  State  or  territory  in  which  the  same  is  situated." 

The  act  --for  the  relief  of  the  citizens  of  Denver,  in  the  Ter- 
ritory of  Colorado"  (May  28th.  1864,  13  Stat,  at  Large.  94), 
anthorthorizes  -•  the  probate  judge  of  Arapahoe  county  to  enter, 
at  the  minimum  price,  in  trust  for  the  several  use  and  benefit  of  the 
rightful  occupants  of  said  land,  and  the  !)oih(  f(}p  owners  of  the 
improvements  thereon,  according  to  their  respective  interests, 
the  following  legal  subdivisions  of  land."  describing  certain 
specific  divisions,  of  which  the  lot  in  question  is  a  portion. 

The  act  of  the  territorial  legislature  of  Colorado,  passed 
March  11th.  1864.  contained  numerous  provisions  regulating  the 
rights  of  settlers,  and  the  manner  in  which  their  rights  shall  be 
ascertained.  The  second  section  enacts  that  the  title  from  the 
probate  judge  shall  be  in  trust  for  and  conveyed  to  "  the  person 
or  persons  who  shall  have,  possessed,  or  be  entitled  to  the  posses- 
sion or  occupancy  thereof,  according  to  his,  her,  or  their  respec- 
tive rights  or  interest  in  the  same,  as  they  existed  in  law  or 
equity,  at  tlie  time  of  the  entry  of  such  lands,  or  to  his.  her  or 
their  heirs  or  assigns."" 

This  regulating  act  of  the  territory  is  in  harmony  with  the  acts 
of  Congress.  It  expresses  more  explicitly  than  do  those  acts. 
the  statement  that  the  occupation  and  possession  which  gives  the 
right,  is  that  which  exists  at  the  time  of  the  entry  of  the  lands 
b}'  the  probate  judge.  Those  in  possession  of  the  land  when  the 
entry  shall  be  made  by  the  probate  judge,  are  the  persons  for 
whom  he  holds  the  lands  in  trust,  and  to  whom  he  is  to  make  the 
respective  deeds.  Although  less  explicitly  declared,  this  is  the 
construction  and  meaning  of  the  acts  of  Congress  also. 

The  land  on  which  the  city  of  Denver  stands  was  entered  by 
the  probate  judge  in  May.  1865.  The  evidence  is  strong  and 
quite  convincing  that,  at  that  date,  as  well  as  at  the  time  of  the 
passage  of  the  enabling  act  (May.  1864),  Mrs.  McClelland,  the 
defendant,  was  in  the  actual  possession  of  lot  No.  6,  with  valuable 
improvements  made  thereon,  and  paying  the  taxes  on  the  same. 
Such  must  have  been  the  conclusion  of  the  court  below,  and  we 
concur  in  it.  The  result  is  fatal  to  the  plaintiff's  right  of  re- 
covery. 

Again,  section  three  of  the  Territorial  act,  to  which  reference 
has  been  made,  makes  it  the  duty  of  the  judge  entering  the  land, 
within  thirty  days  after  such  entry,  by  posting  a  notice  in  three 


CoFiELD  V.  McClelland.  273 

public  places  and  by  publishing-  the  same  in  a  newspaper  of  the 
town,  if  there  be  one.  to  give  notice  of  such  entry. 

This  notice  is  required  to  be  published  once  in  each  week,  for 
three  weeks,  and  to  contain  an  accurate  description  of  the  lands 
so  entered.  It  was  published  by  the  probate  judge  in  a  newspaper 
published  at  Denver,  for  four  weeks,  commencing  j\Iay  lOth.  1865. 
The  judge  was  not  living  at  the  time  of  the  trial,  and  there  was 
no  evidence  that  the  notice  was  posted  in  three  public  places  in 
the  town. 

AVe  think  this  is  a  case  in  which  the  presumption  applies  that 
the  officer  has  done  his  duty,  especially  as  no  provision  was  made 
in  the  act  for  procuring  the  evidence  that  notice  had  been  pub- 
lished. The  case  comes  within  the  rule  so  well  settled  in  this 
court,  "that  the  legal  presumption  is  that  the  surveyor,  register, 
governor,  secretary  of  State,  have  done  their  duty  in  regard  to  the 
several  acts  to  be  done  by  them  in  granting  lands,  and,  therefore, 
surveys  and  patents  are  always  received  as  prima  fdcie  evidence 
of  correctnesss."  (See  the  numerous  cases  cited  in  Cowen  & 
Hill's  notes  to  Phillip's  Evidence,  note  174.  "Presumptions.") 

Section  four  of  the  Territorial  Act.  to  which  reference  has  been 
made,  enacts  as  follows  : 

"§4.  Each  and  ev(-ry  person  or  association,  or  company  of  persons, 
claiming  to  be  an  occupant  or  occupants,  or  to  have  possession  or  to  be 
entitled  to  the  occupancy  or  possession  of  such  lands,  orto  any  lot.  block. 
or  share  therein,  shall,  witliin  ninety  days  after  the  first  publication  of 
such  notice  *  *  *  sign  a  statement  in  writing,  containing  an  accurate 
description  of  the  particular  parcei  or  parts  of  land  in  which  he  claims 
an  interest  *  *  *  and  deliver  the  same  into  the  office  of  the  judge 
or  judges,  and  all  persons  failing  to  sign  and  deliver  such  statement 
within  the  time  specified  in  this  section,  shall  be  forever  barred  the  right 
of  claiming  or  recovering  such  lands  or  any  interest  or  estate  therein 
*     *    *    in  any  court  of  law  or  equity." 

No  language  could  be  more  explicit  to  make  the  failure  to 
deliver  the  statement  within  the  time  specified  a  bar,  an  absolute 
bar,  to  the  recovery  of  the  same,  however  strong  might  be  the 
equitable  claim  to  the  land  so  lost. 

This  regulation  is  a  reasonable  one.  In  a  crowded  district, 
with  a  changing  frontier  population,  it  might  well  be  required 
that  the  claim  should  be  interposed  at  an  early  day. 

It  is  not  pretended  that  the  appellant,  or  any  one  on  his  behalf, 
made  the  statement  required  by  section  four.  Its  absence  bars 
his  claim  in  every  court  either  of  law  or  equity. 

18 


274  CoFiELD  r.  McClelland. 

For  the  two  reasons  stated — 

1st.  That  the  defendant  below  was  in  possession  of  the  lot  in 
question  at  the  time  of  the  passage  of  the  act  for  the  relief  of  the 
city  of  Denver,  and  at  the  time  of  the  entry  of  the  lands  made  by 
the  probate  judge,  by  means  of  which  she  became  and  was  the 
party  by  law  entitled  to  the  deed  from  the  probate  judge  ;  and — 

2d.  That  the  appellant,  by  omitting  to  sign  and  deliver  the 
statement  required  by  section  four  of  the  territorial  statute,  became 
barred  of  the  right  to  the  lands,  both  in  law  and  equity.  We  are 
of  the  opinion  that  the  judgment  of  the  court  below,  dismissing 
the  complaint,  was  correct,  and  that  it  must  be  Affirmed. 


NoTK. — ^Tlie  mere  survey  and  platting  of  ;i  town  site  on  public  haul 
without  followhig  it  up  by  entry  gives  no  right  to  the  land.  IVeiibcrgcr 
V.  Tcnvi/.  8  Minn.,  4")(j;   Carson  v.  Smith.,  12  Minn.,  546. 

An  occupant  before  entry  has  an  interest  in  the  land  occupied  that 
may  be  conveyed,  and  the  recording  laws  of  the  State  apply  to  such 
conveyances.     Barne.'ix.  Ahnjj/ii/.,  3  Minn.,  lU). 

I'he  rights  of  the  occupants  are  fixed  at  the  time  tlie  proof  before  the 
register  and  receiver  is  made  or  oftei'ed.  Leech  v.  Ranch,  '.i  Minn.,  44S ; 
Casliier  v.  Gii7i/hei\  d  Minn,  119;  Manlulu  v.  Mcuyhr,  17  Minn.,  26.5; 
Haniiigioii  v.  /S7.  Paid  and  S.  C.  E.  R.  Co  .,  17  Minn.,  215. 

I'o  entitle  a  person  to  the  benefit  of  the  act  he  must  be  in  possession 
of  the  premises  personally  or  by  having  a  tenant  or  agent  on  the  land. 
Carson  v.  Smith,  12  Minn.,  540. 

The  entry  when  made  relates  back  to  the  date  of  proof  and  applica- 
tion to  enter ;  and  if  an  occupant  entitled  dies  after  proof,  but  before 
payment,  the  title  descends  to  his  heirs,  and  their  right  will  not  be 
defeated  by  the  widow  obtaining  the  title  in  her  own  name  and  convey, 
ing  it  to  another.      Coy  v.  Coy,  15  Minn.,  119. 

The  mere  fact  of  being  an  occupant  does  not  necessarily  give  an 
interest  in  the  town  site  ;  they  must  be  also  owners.  One  occupying  as 
a  tenant  of  another  is  not  the  owner;  the  landlord  is  the  one  entitled 
under  the  act.  and  not  the  tenant.  'I'own  companies  may  be  occupants 
and  owners  as  recognized  by  the  State  statute,  and  are  embraced  within 
the  provisions  of  the  act.  Wind  field  Town  Co.  v.  Maris,  11  Kansas,  128; 
Independence  Town  Co.  v.  De  Long,  11  Kansas,  152. 

Under  the  act  of  April  6th,  1854,  authorizing  the  entry  of  the  town 
site  of  Council  Blufts  the  person  who  was  the  occupant  at  the  time  the 
deed  should  be  executed  by  tbe  mayor  is  the  one  entitled  under  the  act, 
and  not  the  occupant  at  the  date  of  the  act  of  Congress.  Hall  v.  boran, 
6  iowa,  433. 

The  probate  judge  in  ascertaining  to  whom  deeds  should  be  made 
under  the  town  site  act  does  not  act  judicially,  and  his  decisions  may  be 
reviewed  by  the  courts.     Ming  v.  Truett,  1  Montana,  322 ;  Hall  v.  Ashley, 


Ladiga  v.  Roland.  275 

2  Montana,  4*^'.>,  and  EdwarJs  v.  Tracy,  2  Montana,  J!'.  Also  sec  f)rinjer 
V.  Kfiii,  1  Colo  ,  :{:^(!,  and  Tnwhntii  v.   Wilder,  ^  Xcv.,  67. 

I'lie  trust  is  to  \w  executed  b}'  tlie  probate  judge  under  such  rules  and 
regulations  as  inaj'  be  prescribed  by  tlie  legi.-lature ;  but  should  ilie  legis- 
lature authorize  tlie  probate  judge  to  enter  a  town  site  and  to  give  "  tirst 
to  lames  K.  Paul  a  deed  of  such  lots  as  he  holds  or  may  liold  free  from 
the  claim  of  any  other  person,  by  virtue  of  an  equitable  pre-emption 
claim  thereto,  and  to  all  other  occupants  deeds  to  each  severally  of  the 
lots  held  by  them  bj'^  virtue  of  contracts  made  with  said  James  K.  I'aul,'" 
thus  inidertaking  to  dispose  of  the  whole  trust  to  the  person  named  and 
iiis  grantees,  and  autliorizing  no  one  else  to  be  considered  or  receive  any 
relief,  is  in  direct  violation  of  the  act  of  Congress,  and  therefore  void. 
Hdbii  V.  Cash,  6  Mich.,  193. 

.After  a  town  site  has  been  laid  out  5n  public  land  the  plan  of  tlie  city 
cannot  be  changed  so  as  to  take  tlie  property  of  a  bona  fide  occupant  and 
claimant.     Ahmany  v.  (^Hy  of  Petaluma,  38  Cal.,  5.53, 

For  a  construction  of  the  act  on  other  points  see  McTaiif/art  v.  Horrisou, 
12  Kansas.  (>2 ;  Sherry  v.  Sampson,  11  Kansas,  611  ;  Clark  v.  Fay,  20  V\  is., 
478;  rnryv.  Superior  City,  26  Wis.,  64;  Lechler  v.  Chapin,  12  Nev.,  66; 
Jones  V.  City  nf  Peitdmua,  3(i  Cal..  230.  and  3S  Cal..  3!)7;  and  !^)tuhx. 
Pipe,  3  Colo  ,  187. 


Sally  Ladiga,  plaintiff  in  error,  c.  Ricard  De  Marcus  Roland 
AND  Peter  Hiefneu,  defendants. 

January    Term,  1844. — 2   Howard,  581  ;   15  Curtis,  211. 

Cnder  the  treaty  between  the  United  .states  and  the  Creek  tribe  of  Indi- 
ans of  March  24,  1832  (7  Stats,  at  Large,  366),  it  was  Held : 

1 .  That  the  twenty  sections  of  land  to  be  selected  by  the  President 
for  the  orphan  children  of  the  tribe,  were  not  to  be  taken  from  the 
land  reserved  for  the  tribe  by  the  preceding  stipulations  of  the 
treaty. 

2.  That  a  grandmother,  with  whom  some  of  her  grandchildren 
resided,  was  the  head  of  a  family,  and  entitled  to  a  half-section  of 
land,  as  such.i 

Error  to  the  Supreme  Court  of  the  State  of  Alabama,  in  an 
action  of  trespass  quare  dausuvi.  Both  parties  claimed  title 
under  the  provisions  of  the  treaty  of  Washington,  of  March  24. 
1832,  between  the  United  States  and  the  Creek  tribe  of  Indians  ; 
the  plaintiff  in  error,  under  the  second  article  of  the  treaty,  as  the 
head  of  a  family,  and  the  defendants  as  purchasers  under  a  sale 
of  selections  of  lands   made  by  the  President  for  the  orphan 


276  Ladiga  c.  Roland. 

children  of  the  Creeks,  pursuant   to  anotlier  chiuse  of  the  same 
article. 

The  material  articles  of  the  treaty  are  as  follows  : 
''  Art.  I.    The  Creek  tribe  of  Indians  cede  to  the  United  States  all  their 
lands  east  of  the  Mississippi  river. 

"  Art.  ir.  The  United  States  engage  to  survey  the  said  land  as  soon  as 
the  same  can  be  conveniently  done,  after  the  ratification  of  this  treaty, 
and  Avhen  the  same  is  surveyed  to  allow  ninety  principal  chiefs  of  the  Creek 
tribe  to  select  one  section  each,  and  every  other  head  of  a  Creek  family 
to  SL'lect  one  half-section  each,  which  tracts  shall  be  reserved  from  sale 
for  their  use  for  the  term  of  Ave  years,  unless  sooner  disposed  of  by  them. 
A  census  of  these  persons  shall  be  takeu  under  the  direction  of  the  Presi- 
dent, and  the  selections  shall  be  made  so  as  to  include  the  improvements 
of  each  person  within  his  selection,  if  the  same  can  be  so  made,  and  if 
not,  then  all  the  persons  belonging  to  the  same  town,  entitled  to  selec- 
tions, and  who  cannot  make  the  same,  so  as  to  include  their  improve- 
ments, shall  take  them  in  one  body  in  a  proper  form.  And  twenty  sec- 
tions shall  be  selected,  under  the  direction  of  the  President,  for  the 
orphan  children  of  the  Creeks,  and  divided  aud  retained  or  sold  for  their 
benefit,  as  the  President  may  direct.  Provided,  however,  that  no  selec- 
tion or  locations  under  this  treaty  shall  be  so  made  as  to  include  the 
agency  reserve. 

"Alt.  Ill-  These  tracts  may  be  conveyed  by  the  persons  selecting  the 
same,  to  any  other  persons  for  a  fair  consideration,  in  such  manner  as 
the  President  may  direct.  The  contract  shall  be  certified  by  some  person 
appointed  for  that  purpose  by  the  President,  but  shall  not  be  valid  till 
the  President  approves  the  same.  A  title  shall  be  given  by  the  United 
States  on  the  completion  of  the  payment. 

••  Art.  IV.  At  the  end  of  five  years  all  the  Creeks  entitled  to  these 
selections,  and  desirous  of  remaining,  shall  recei\e  patents  therefor  in 
fee-simple  from  the  United  States. 

"Art.  V.  All  intruders'  upon  the  country  hereby  ceded,  shall  be 
removed  therefrom  in  the  same  manner  as  intruders  may  be  removed  by 
law  from  other  public  land  until  the  country  is  surveyed,  and  the  selec- 
tions made  ;  excepting,  however,  from  this  provision,  those  white  persons 
who  have  made  their  own  improvements,  and  not  expelled  the  Creeks 
from  theirs.  Such  persons  may  remain  till  their  crops  are  gathered. 
After  the  country  is  surveyed  and  the  selections  made,  this  article  shall 
not  operate  upon  that  part  of  it  not  included  in  such  selections.  But 
intruders  shall,  in  the  manner  before  described,  be  removed  from  the 
selections  for  the  term  of  five  years  from  the  ratification  of  this  treaty, 
or  until  the  same  are  conveyed  to  white  persons. 

"  Art.  VI.  Twenty-nine  sections,  in  addition  to  the  foregoing,  may  be 
located,  and  patents  for  the  same  shall  then  issue  to  those  persons, 
beino-  Creeks,  to  whom  the  same  may  be  assigned  by  the  Creek  tribe. 

"  Art.  XV.  'This  treaty  shall  be  obligatory  to  the  contracting  parties, 
as  soon  as  the  same  shall  be  ratified  by  the  United  States.'" 


Ladiga  v.  Roland.  277 

Tlie  material  facts  and  the  instructions  and  refusals  of  the 
court  were  stated  in  substance  as  follows  in  the  bill  of  exceptions  : 

It  was  proved  that  said  plaintiff,  at  the  date  of  treat}'  aforesaid, 
to  wit,  on  the  24th  of  March,  1832.  and  long  anterior  to  that 
period,  and  from  thence  to  the  present  time,  was  and  is  the  bead 
of  the  Creek  Indian  family  residing  in  and  having  an  improvement 
upon  the  E.  half  of  section  2.  township  14,  range  8  E.,  &c.,  in 
the  district  of  land  subject  to  sale  at  MaTdisville,  in  the  State  of 
Alabama,  which  land  is  situate  in  Benton  county,  and  is  the  same 
sued  for  in  this  action. 

It  was  further  proved  that  at  no  time  was  there  au}^  other  Indian 
improvement  on  the  said  land,  and  that  the  improvement  and 
residence  of  the  plaintiff  alone  was  embraced  in  said  half-section 
by  the  legal  lines  of  survey,  and  that  plaintiff  had  lived  there  for 
many  years,  and  raised  a  numerous  family  of  children. 

It  was  further  proved  by  the  production  of  the  census-roll  taken 
by  order  of  the  government  of  the  United  States  of  the  heads  of 
families  of  the  Creek  tribe,  in  conformity  with  the  second  article 
of  the  treaty  aforesaid,  that  the  plaintiff  was  duly  enrolled  by 
the  agent  of  the  United  States  charged  with  this  duty  as  one  of 
the  heads  of  families  belonging  to  the  said  Creek  tribe,  and  .is 
entitled  to  land  under  said  treaty,  her  identity  being  shown  by 
the  witnesses. 

Tiiat  in  1834  the  government,  hy  agents  charged  with  this  duty, 
located  the  Indians.  That  the  formula  of  location,  as  practiced 
by  said  agent,  consisted  in  calling  the  Indians  belonging  to  the 
resi)ective  Indian  towns  together,  and,  in  the  presence  of  the 
chiefs  and  head  men  in  the  town,  the  agent  would  call  over  the 
names  registered  by  the  enrolling  agent  as'  being  the  heads  of 
families  in  that  town.  That  the  persons  whose  names  were  so 
registered  would  appear  and  answer  to  their  names  and  their 
identity  and  residence,  and  also  their  improvements  would  he 
proved,  &c..  pointed  out  I)}'  the  chiefs  and  head  men  so  assembled. 
and  the  agent  would  then  designate  b}^  figures  and  letters  the  land 
opposite  the  name  of  each  reservee  on  said  census  roll  to  which 
he  supposed  them  entitled  under  the  treaty. 

That,  upon  the  agent  coming  into  the  Tallasahatchee  town  of 
Indians  for  the  purpose  of  making  the  locations  aforesaid,  the 
plaintiff  appeared  before  him,  and  being  identified  as  the  same 
whose  name  was  enrolled  on  the  census  list  of  said  town,  claimed 
the  land  in  dispute,  on  which  her  im])rovement  at  the  date  of  tl'.e 


278  Ladiga  ?.-.  Roland. 

treaty  aforesaid  was  situated,  and  whieli  she  then  informed  him 
she  had  selected  as  her  reservation,  there  being  no  otlier  im])rove- 
ment,  location,  or  conflicting  claim  thereto  at  that  time.  That 
the  deputy  locating  agent,  who  located  the  town  to  which  she 
belonged,  not  regarding  her  the  head  of  a  family  by  reason  of  her 
children  having  married  and  left  her,  and  none  but  orphan  grand- 
children residing  with  her.  refused  to  recognize  her  rights  under 
the  treaty,  or  set  apart  the  land  so  by  her  selected  opposite  her 
name  on  the  roll,  as  in  other  cases.  That  from  the  date  of  the 
treaty  aforesaid  until  the  year  1837  she  made  continual  and 
repeated  applications  to  the  government  officers  to  assert  her 
rights  to  said  land,  and  through  them  to  the  government  itself, 
until,  in  1837,  she  was  forced  to  leave  the  country  and  emigrate 
to  Arkansas,  by  the  armed  troops  in  the  employ  and  under  the 
directions  of  the  government. 

That  she  never  had  abandoned  her  claim,  but  insisted  on  her 
right  under  the  treaty,  to  enforce  which  this  action  was  brought. 
M.  M..  Houston,  who  was  the  locating  agent,  testified  as  to  the 
reasons  which  induced  him  to  refuse  a  recognition  of  plaintiif's 
right. 

The  defendant  then  introduced  a  patent  or  grant  from  the  United 
States,  signed  by  the  President,  Martin  Van  Buren.  dated  the  21st 
day  of  December,  1837,  which,  after  reciting  that  by  virtue  of  the 
treaty  aforesaid  of  the  24th  March,  1832,  between  the  United 
States  and  Creek  tribe  of  Indians,  the  United  States  agreed  that 
twenty  sections  of  land  should  be  selected,  under  the  direction  of 
the  President,  for  the  orphan  children  of  said  tribe,  and  divided 
and  retained  or  sold  for  their  benefit,  as  the  President  might 
direct ;  and  that  the  President  in  making  such  selection  had 
included  section  2,  township  14,  range  8  east,  and  divided  the 
same  into  quarter-sections  ;  and  said  tract  having  been  sold  pur- 
suant to  instructions.  Canton,  Smith,  and  Heifner  had  become 
the  purchasers  of  the  southeast  quarter  of  said  section,  which 
purchase  had  been  sanctioned  and  apj)roved  by  the  President  on 
the  3d  November,  1836 — gave  and  granted  to  said  Canton,  Smith, 
and  Heifner  the  said  southeast  quarter,  to  them,  their  heirs,  (^c, 
forever,  as  tenants  in  common,  and  not  as  joint  tenants  :  which 
grant  being  properly  cittested  was  read  to  the  jury.  Another 
l)atent  or  grant  from  the  government  of  the  United  States,  similar 
in  all  its  forms  to  that  above  named,  and  containing  like  recitals, 
bearing  the  same  date  and  properly  authenticated,  conveying  the 


Ladiga  v.  Roland.  279 

iiortheast  quarter  of  said  section  to  Richard  de  Marcus  Roland, 
was  offered  and  read  to  tiie  jury  ;  and  this  being;  all  the  testimony, 
the  plaintiff's  counsel  asked  the  court  to  char2:e  the  Jury  as  follows  : 

1.  That  if  they  believe  from  the  evidence  that  the' defendants 
were  in  possession  of  the  land  sued  for  at  the  institution  of  this 
suit,  and  continued  to  hold  the  same  adversely,  receiving  the 
rents  and  profits  thereof,  and  that  if  from  the  evidence  the  jury 
were  further  satisfied  that  the  plaintiff  at  the  date  of  the  treaty 
made  and  concluded  at  the  city  of  Washington  between  the  United 
.States  of  America  and  the  Creek  tribe  of  Indians  east  of  the  Mis- 
sissippi I'iver,  to  wit,  on  the  24th  day  of  March,  1832.  was  the 
head  of  a  Creek  Indian  family,  and  that  the  United  States  enrolled 
her  name  under  the  provisions  of  the  treaty  aforesaid,  requiring 
a  census  to  be  taken,  &c.,  as  the  head  of  a  Creek  famil3%  and  that 
said  plaintiff  ])efore  and  at  the  time  of  the  ratification  of  said 
treaty,  and  from  thence  until  she  was  forced  to  leave  the  country 
by  the  United  States,  possessed  said  lands  sued  for.  having  an 
improvement  and  residence  upon  the  same  :  and  if  the  jury  believe 
from  the  testimony  that  said  plaintiff  did  select  the  said  half 
section  including  her  improvement,  and  that  such  selection  was 
so  made  without  conflicting  with  the  rights  of  any  other  Indian, 
or  the  rights  or  duties  of  the  government  reserved,  secured,  or 
prescribed  by  the  treaty  aforesaid,  and  if  the  proper  officers  of 
the  government  were  duly  notified  of  such  selection  by  the  said 
plaintiff,  and  that  she  had  never  forfeited  her  rights  by  a  volun- 
tary abandonment  of  the  lands  sued  for,  but  had  been  compelled 
by  force  or  coercion  on  the  part  of  the  United  States  to  emigrate 
from  the  country  and  leave  the  land,  then  the  plaintiff  is  entitled 
to  recover  in  this  action. 

2.  The  plaintiff  asked  the  further  charge  :  that  under  the  second 
article  of  the  said  Creek  treaty  of  the  24th  INIarch,  1832,  each 
head  of  a  Creek  Indian  family,  after  the  land  ceded  by  said  treaty 
had  been  surveyed,  was  entitled  to  select  a  half-section  of  land  so 
as  to  include  their  improvement,  if  the  same  could  be  made  :  and 
if  the  jury  believe  from  the  proof  that  the  plaintiff  was  the  head 
of  a  Creek  family,  and  entitled  to  a  selection  under  the  treaty, 
and  that  after  such  survey  she  could  select  and  did  select  the  half- 
section  in  dispute,  and  in  a  reasonable  time  notified  the  govern- 
ment of  such  selection,  and  had  never  voluntarily  abandoned  said 
land,  then  plaintiflT  in  such  case  acquired  a  vested  right  to  said 
land  inchoate,  but  sulficient  under  the  laws  of  this  State,  coupled 


280  Ladiga  v.  Roland. 

with  possession,  to  maintain  this  action,  and  that  such  right  could 
not  be  defeated  by  the  sulisequent  disposition  of  the  same  by  the 
United  States  to  the  defendants. 

3.  The  plaintiff  asked  the  court  furtlier  to  cnarge  the  jury  that, 
if  the  plaintiflT  was  entitled  to  select  a  half-section  of  land  under 
the  treaty  aforesaid,  as  the  head  of  a  Creek  family,  duly  enrolled 
as  such,  and  the  selection  could  have  been  so  made,  and  was  so 
made,  as  to  include  her  improvement  within  the  selection,  that, 
in  such  case,  the  treaty  itself  located  the  plaintiff ;  and  if  the 
government,  with  a  knowledge  of  such  selection  and  location, 
exposed  the  land  to  sale,  or  reserved  it  for  other  purposes,  such 
sale  or  disposition  could  not  prejudice  the  right  of  the  plaintiff. 
All  which  charges  the  court  refused  to  give,  and  in  lieu  of  them 
charged  the  jury  :  that,  notwithstanding  the  plaintiff  was  the 
head  of  a  Creek  family,  duly  enrolled  as  such  by  the  authorized 
agent  of  the  government,  and  entitled  to  select  a  half-section 
under  the  second  article  of  the  treaty  of  the  24th  March,  1832  ; 
and  that,  although  after  the  land  ceded  by  the  treaty  aforesaid 
had  been  surveyed,  she  could  have  selected,  and  did  select,  the 
half-section  in  dispute,  which  included  her  improvement,  and  of 
which  selection  she  duly  notified  the  government,  yet  the  refusal 
of  the  locating  agent  to  recognize  her  right,  and  to  set  apart  the 
land  by  a  designation  of  it  opposite  her  name  upon  the  roll,  as 
in  other  cases  of  location,  coupled  with  the  subsequent  sale  and 
grants  of  the  same  land  to  the  defendants  by  the  United  States, 
whether  right  or  wrong,  divested  tlie  plaintiff  of  all  right  to  said 
land,  and  vested  in  the  defendants  in  this  action  titles  paramount, 
which  the  plaintiff  could  not  s:ainsay  or  dispute.  To  which 
refusals  of  the  court  to  give  the  charges  asked  by  the  plaintiff, 
and  to  the  charge  given  in  lieu  of  them  by  the  court,  tiie  plaintiff 
excepted,  and  the  judgment  of  tiie  county  court  having  been 
affirmed  by  the  Supreme  Court  of  Alabama,  this  writ  of  error 
was  brought. 

Coxe  for  the  plaintiff  in  error. 

No  counsel  contra. 

Baldwin,  J.,  delivered  tlie  opinion  of  the  court. 

Both  parties  claim  the  land  in  controversy  under  the  United 
States,  in  virtue  of  the  treaty  of  Washington,  made  on  the  24th 
March,  1832,  between  tlie  United  States  and  the  chiefs  of  the 
Creek  tribe  of  Indians.     The  decision  of  the  Supreme  Court  of 


Ladiga  v.  Roland.  281 

Alabama  was  against  the  title  set  up  by  the  plaiiitift";  the  case  is 
therefore  properly  brought  here  under  the  2oth  section  of  the 
Judiciary  Act  of  1789.  (1  Stats,  at  Large.  85.)  (The  articles  of 
the  treaty  are  set  forth  in  the  statement  of  the  case,  ante.)  Bj'^  an 
inspection  of  the  second  article,  it  will  be  seen  that  there  are 
three  distinct  classes  of  selections  to  be  made  from  the  ceded 
lands,  for  the  benefit  of  the  Indians,  after  the  lands  are  surveyed. 

1.  The  United  States  engage  to  allow  ninety  principal  chiefs  to 
select  one  section  each. 

2.  And  every  other  head  of  a  Creek  family  to  select  one  half- 
section  each,  which  tracts  shall  be  reserved  from  sale  for  their 
use  for  the  term  of  five  years,  unless  sooner  disposed  of  by  them. 
A  census  is  to  be  taken  of  these  persons,  and  the  selections  are 
to  include  the  improvements  of  each  person  within  his  selection. 

3.  And  twenty  sections  shall  be  selected  under  the  direction  of 
the  President,  for  the  orphan  children  of  the  Creeks,  and  divided, 
retained  or  sold  for  their  benefit,  as  he  may  direct. 

By  article  third,  these  tracts  may  be  sold  by  the  persons  select- 
ing them  to  any  persons,  as  the  President  may  direct,  and  a  title 
shall  be  given  by  the  United  States  on  the  completion  of  the  pay- 
ment of  the  consideration.  The  fourth  article  stipulates  that,  at 
the  end  of  five  years,  those  entitled  to  these  selections,  who  are 
desirous  of  remaining,  shall  receive  patents ;  and,  by  article 
fifth,  all  intruders  shall  be  removed  from  these  selections,  for  five 
years  after  the  treaty,  or  until  the  same  are  convej'ed  to  white 
persons.  By  article  sixth,  twenty-nine  sections  more  may  be 
located,  and  patents  shall  issue  to  the  Creeks,  to  whom  the  same 
may  be  assigned  by  the  tribe.  The  fifteenth  article  makes  the 
treaty  obligatory  on  the  parties,  when  ratified  by  the  United 
States. 

The  engagements  of  the  treaty  then  are,  to  allow  the  chiefs 
and  heads  of  families  to  select,  for  their  own  use,  and  reserve 
from  sale  for  five  years,  the  lands  selected,  that  they  may  be  sold 
and  conve3^ed,  with  the  approbation  of  the  President,  and  titles 
to  be  given  by  the  United  States  on  payment  of  the  purchase- 
money,  and  at  the  end  of  five  years  to  give  patents  to  all  who 
are  entitled  to  select  and  desirous  of  remaining,  and  to  remove 
intruders  from  their  selections  during  that  time,  till  tliey  are 
conveyed  to  white  persons. 

The  lands  to  be  selected  for  the  orphans  are  placed  under  the 
exclusive  direction  of  the  President,  as  to  their  location  and  dis- 


282  Ladgia  v.  Roland. 

position,  and  are  not  embraced  in  tlie  third  or  tburtli  articles, 
which  are  confined  to  selections  made  by  the  Indians  themselves. 
These  are  expressly  reserved  from  sale  for  five  years,  whereas  the 
selections  for  orphans  may  be  made  and  the  land  sold  at  any  time 
the  President  directs. 

No  authority  is  s^ivien  to  the  President  to  direct  the  selection  of 
the  twenty  sections  for  orphans,  on  or  out  of  those  made  by  the 
chiefs  or  the  heads  of  families,  or  those  sections  which  the 
tribes  may  assisfn  under  the  sixth  article  ;  all  the  lands  so  selected 
or  located  are  {jlaced  beyond  the  power  of  any  officer,  consis- 
tently with  the  obligatory  en2:a2;ements  of  the  treaty  on  the  United 
States.  In  directing  the  selections  for  orphans,  the  treaty  did 
not  intend,  and  cannot  admit  of  the  construction,  that  they 
might  be  made  on  lands  selected  according  to  the  first  part  of 
the  second  article.  The  provisions  of  the  treaty  were  progressive  ; 
that  I'elating  to  orphans  is  entirely  prospective.  "It  is  a  prin- 
ciple which  has  always  been  held  sacred  in  the  United  States, 
that  laws  by  which  human  action  is  to  be  regulated  look  forward, 
not  backward,  and  are  never  to  be  construed  retrospectively, 
unless  the  language  of  the  act  should  render  that  indispensable. 
No  words  are  found  in  the  act  which  renders  this  odious  construc- 
tion indispensable."  2  Pet..  434.  The  last  clause  in  this  article 
cannot  have  been  intended  to  annul  or  impair  a  title  which  was 
valid  under  the  first  clause,  and  guaranteed  from  intrusion 
under  the  fifth  article  for  five  years,  unless  sooner  sold.  S.  P.  9 
Wheat.,  479. 

Thns  taking  the  treaty,  and  applying  it  to  the  evidence  given  at 
the  trial,  the  instructions  prayed  of  the  court,  and  those  given  to 
the  jury,  it  will  not  be  difficult  to  decide  in  wliicli  party  is  the  right 
of  this  case. 

The  plaintiff  "proved  substantially  the  following  facts.''  (For 
the  facts  proved  upon  the  trial,  see  the  statement  of  the  reporter.) 

From  the  evidence  it  appears  that  the  plaintifl"  claimed  under 
tlie  first,  and  the  defendants  under  the  second  clause  of  the 
second  article  of  the  treaty ;  that  the  plaintiff  was  the  head 
of  a  family  within  the  description,  and  had  complied  with  all  the 
requisites  of  the  treaty,  had  selected  the  tract  whereon  her  im- 
provements were,  where  she  resided  before,  at  the  time  of  the 
treaty,  and  until  her  expulsion  therefrom  l)y  military  force,  on  the 
frivolous  pretence  that  she  was  not  the  head  of  a  family,  her  chil- 
dren having  married  and  left  her,  and  none  but  her  grandchildren 


Ladiga  v.  Roland.  283 

lixed  witli  lier.  The  defendauts  claimed  under  the  .second  clause 
of  the  second  article,  relating;  to  orphans'  selections,  by  two  patents 
dated  in  1837,  each  for  a  quarter-section,  being  the  two  halves  of 
the  half-section  selected  bj'^  the  plaintiff,  which  patents  issued 
pursuant  to  sale  made  by  the  agent  appointed  by  the  President, 
and  affirmed  b}^  him  in  November,  1836,  five  months  l)efore  the 
expiration  of  five  years  from  the  ratification  of  the  treaty,  and 
while  the  land  was  expressly  reserved  from  sale.  The  defendants 
gave  no  other  evidence  of  title, 

This  sale  was  a  direct  infraction  of  the  solemn  engagements  of 
the  United  States  in  the  treaty.  Though  approved  })y  the  Presi- 
dent, if  the  plaintiff"  had  i)reviously  selected  it  according  to  the 
stipulations  of  the  treaty,  in  such  case  the  sale  was  a  nullity,  for 
want  of  any  power  in  the  treaty  to  make  it. 

The  President  could  give  no  such  power,  or  authorize  the  officers 
of  the  land  office  to  issue  patents  on  such  sales  ;  they  are  as  void 
as  the  sales,  by  reason  of  their  collision  with  the  treaty.  The  onlj^ 
remaining  inquiry  is  into  the  plaintiffs  title.  No  other  objection 
has  been  made  to  it.  than  the  refusal  of  the  locating  agent  or  his 
deputy  to  recognize  her  right  under  the  treaty,  or  to  set  apart  the 
land  so  located  by  her  opposite  her  name  on  the  roll,  as  in  other 
cases,  solely  for  the  reason  he  assigned.  We  cannot  seriously 
discuss  the  question,  whether  a  grandmother  and  her  grandchildren 
compose  a  famil}',  in  the  meaning  of  that  word  in  the  treaty  ;  it 
must  shock  the  common  sense  of  all  mankind  even  to  doubt  it. 
It  is  as  incompatible  with  the  good  faith  and  honor  of  the  United 
States,  and  as  repugnant  to  the  Indian  character,  to  suppose  that 
either  party  to  the  treaty  could  contem})late  such  a  construction 
to  their  solemn  compact,  as  to  exclude  such  persons  from  its 
protection,  and  authorize  any  officer  to  force  her  from  her  home 
into  the  wilds  of  the  far  West.  Such  an  exercise  of  power  is  not 
warranted  l)y  the  compact,  and  the  pretext  on  which  it  was  exer- 
cised is  wholly  unsanctioned  by  any  principle  of  law  or  Justice. 

Having  a  right  by  the  treaty  to  select  the  land  of  her  residence  ; 
having  selected  and  been  driven  from  it  by  lawless  forces,  her 
title  remains  unimpaired.  She  has  not  slept  on  her  rights,  but 
from  1832  to  1837  has  made  continuous  and  repeated  api)lications 
to  the  government  officers  to  assert  her  rights  to  said  land,  and 
through  them  to  the  government  itself  in  1837.  She  has  never 
abandoned  her  claim,  but  has  insisted  on  her  rights  under  the 
treatv. 


284  Wilson  r.  Wall. 

In  (Mir  opinion,  the  })laintirt'  not  only  has  a  ri>;"lit  to  the  land  in 
question  under  the  treaty,  but  one  whicii  it  protects  and  liuarantees 
against  all  the  nets  which  have  been  done  to  her  prejudice  ;  and 
we  are  much  gratified  to  find  in  the  able  and  sound  opinion  of  the 
Supreme  Court  of  Tennessee,  on  the  Cherokee  treat}^  of  IHU),  (7 
Stats,  at  Large.  19o,)  and  the  Supreme  Court  of  Alabama  on  this 
treaty,  a  train  of  reasoning  and  conclusitjns  which  we  very  much 
approve,  and  are  perfectly  in  accordance  with  our  opinion  in  this 
case.  These  eases  are  reported  in  2  Yerger.  144.  432  :  o  Yerger, 
323  ;  5  Porter,  Alabama,  330,  427. 

The  judgment  of  the  Supreme  Court  of  Alabama  is  therefore 

Rer(-rse(L 

1.  A  married  woman  liaviui^'  l)('cn  deserted  \)y  lier  Inisband,  lield  to  be 
"the  head  of  a  family,"  and  entitled  to  land  as  sncli  under  the  treaty. 
Wells  V.  Th<mi}).soii.  13  Ala.,  I'X^. 

Under  the  Choctaw  treaty  o'  September  27,  18:^0,  a  white  man  who  had 
married  into  the  nation  and  was  recognized  by  the  Clioctaws  as  the  liead 
of  a  family,  was  entitled  to  land  as  such.     Tinmy  v.  Fi.sli,  28  Miss.,  306. 


Wilson  /•.  Wall. 
December  Term,  1867. — 6  Wallace,  83. 

Sembl(\  tiiat  under  the  treaty  of  the  United  States  with  the  Clioctaws, 
in  1830,  by  which  the  United  States  agreed  that  each  <  hoetaw  head 
of  a  family  desirous  to  remain  and  become  a  citizen,  i^tc  ,  should  be 
entitled  to  one  section  of  land ;  "and  in  like  manner  shall  be  entitled 
to  one-lialf  that  quantity  for  each  unmarried  child  whicli  is  living 
with  him  over  ten  years  of  age,  and  a  quarter-section  to  such  child  as 
maj^  be  under  ten  years  of  age,  to  ail  join  Ike  localion  of  the  parent  •^''^ 
no  trust  was  meant  to  be  created  in  favor  of  the  children.  Ihey 
were  named  only  as  measuring  the  quantity  of  land  that  should  be 
assigned  to  the  head  of  the  family,  i 

However  this  may  be,  if  under  the  assumption  that  no  trust  was  meant 
to  be  created,  the  United  States  have  issued  under  the  treaty  a  patent 
to  a  rhoctaw  head  of  a  family,  individually  an)  in  fee  simple  for  all 
the  sections,  a  pui'chaser  from  him  bona  fide  and  for  value  will  not 
be  atlected  with  the  trust,  even  though  he  knew  that  his  vendor  was 
a  rdioctavv  head  of  a  family,  and  in  a  general  way  that  lie  had  the 
land  in  virtue  of  the  treaty. 

Where  it  is. sought  to  affect  a  hona  fide  purchaser  for  value  with  con- 
structive notice,  the  question  is  not  wlietlier  he  liad  the  means  of 
obtaining,  and  might  by  prudent  caution  have  obtained  tlic  knowl- 
edge ill  question,  but  whether  his  not  obtaining  it  was  an  act  of 
gross  or  culpable  negligence. 


Wilson  v.  Wall.  28f) 

Kuiioi;  to  tlie  Supreme  Court  of  Alabama. 

By  the  fourteenth  article  of  a  treat)^  made  in  1830.  between  the 
Choctaw  Indians  and  the  United  States,  by  whicii  the  Choctaws 
ceded  their  territories  to  the  United  States,  it  was  thus  stipulated  : 

''Kiich  Choctiiw  liead  of  a  fainily  b(>iii,i>-  (Icsimu.-;  to  remain  and  bccoiiic 
a  citizen  of  the  States,  shall  be  permitted  to  do  so  by  signifying  his  inten- 
tion to  the  agents,  &Q,  ,  and  thereupon  be  entitled  to  a  reservation  of 
one  section  of  six  hundred  and  forty  acre-  of  land,  to  be  bounded  by 
sectional  lines,  and  in  like  nianer,  shall  be  entitled  to  one-lialf  tiiat^(iuantity 
/'"/  each  uinnarried  child,  which  is  living  with  him,  over  ten  years  of  age  ; 
and  a  (luarter-section  to  such  child  as  may  l)e  undei-  ten  years  of  age,  to 
wljciii  the  Joratioii  of  the  parent.''' 

Hall  was  such  a  head  of  a  family,  and  at  the  date  of  the  treat}' 
had  living  with  him  seven  children,  of  whom  three  were  over' 
and  four  under  ten  years  of  age.  This  gave  one  section  as  re- 
spected himself,  and  two  and  a  half  sections  as  respected  his 
children.  Having  reported  to  the  agent  of  the  United  States  in 
making  his  claim,  the  number  and  ages  of  his  children,  but  not 
their  names,  he  secured  a  reservation  of  three  and  a  half  sections, 
including  the  section  on  which  he  lived.  In  1841,  a  patent  issued 
to  him  directly  for  the  whole  three  and  a  half  sections  ;  the  instru- 
ment reciting  that  these  had  been  "located  in  favor  of  the  said 
William  Hall  as  his  reserve."  The  words  of  grant  in  the  patent 
"were  to  him  and  to  his  heirs."  with  a  habendum,  "to  his  or  their 
heirs  and  (<ssigns  forever." 

In  1836,  anticipating  the  issue  of  the  patent,  he  sold  the  whole 
three  and  a  half  sections  for  $750,  which  was  paid  him,  to  one 
Wilson,  who  took  possession  and  made  valuable  improveinents  on 
the  land. 

In  April.  1849.  Hall  himself  being  dead,  his  children,  now  grown 
up,  filed  a  bill  in  the  Chancery  Court  of  Alabama,  against  AVilson. 
to  recover  the  two  and  a  half  sections,  which  were  granted  as 
respected  them.  Wilson  admitted  in  his  answer,  knowdedge  that 
Hall  was  a  Choctaw  head  of  a  family  entitled  to  a  reservation, 
but  denied  knowledge  of  what  article  of  the  treaty  he  claimed 
under. 

It  was  conceded  tlmt  in  ascertaining  to  whom  the  patents 
should  issue  for  the  lands  under  the  treaty  in  question,  it  was  not 
customary  to  take  down  or  return  to  the  government  the  names 
of  children  of  heads  of  families,  but  that  in  executing  the  treaty, 
the  aoent  returned  the  names  of  heads  of  families,  with  the  num- 


286  Wilson  v.  Wall. 

her  and  ages  of  their  children  ;  and  that  in  issuing  the  grants  m 
fee  simple,  it  had  been  customary  to  issue  them  in  the  form  of  tlie 
patent  to  Hall,  until  the  year  1842.  In  that  year  an  act  was  passed 
by  Congress.  (;')  Stat,  at  l^arge.  olo).  directing  tliat  as  to  lands 
located  for  Choctaw  children,  the  patent  should  issue  to  such 
•'  Indian  child  if  living."  and  if  not  living,  to  his  heirs  and  repre- 
senatives.  A  statute  had  previously  passed  (5  Stat,  at  Large,  IHO). 
referring  to  article  fourteenth  of  the  treaty,  and  appointing  com- 
missioners with  full  power  to  examine  and  ascertain  the  names  of 
persons  who  had  fulfilled  the  conditions  of  settlement  so  as  to 
entitle  them  to  patents,  and  to  ascertain  the  (luantity  for  each 
child  ••according  to  the  limitation  contained  in  said  article. 

It  also  seemed  that  from  the  date  of  the  treaty  down  to  the  act 
of  1842.  the  construction  of  the  executive  department  had  been, 
that  no  provision  was  made  for  children  as  independent  bene- 
ficiaries, but  that  they  were  named  as  measuring  the  quantity  of 
land  that  should  be  assigned  to  the  head  of  the  family. 

At  least,  referring  to  these  provisions,  the  Commissioner  of 
Indian  Afliairs  had  said  to  the  Attorney  General  in  1842 — 

"These  words  were  construed  by  'Slv.  i-^ecretary  Cass,  to  give  to  the 
parent  tlie  title  to  the  halves  and  quarters  of  a  section  stipulated  for,  in 
rig-ht  of  the  children.  'I'his  construction  has  been  the  uniform  one  of  the 
department  in  executing  the  ti-eaty,  and  patents  have  issued  accord- 
ingly, of  the  correctness  of  which  no  doubt  has  been  entertained  here- 
tofore. The  register  of  those  applied  to  the  agent  under  the  article, 
contained  the  names  of  the  heads  of  families  only,  which  would  seem  to 
show  that  the  children  were  not  entitled  in  the  opinion  of  the  Indians 
themselves  who  furnished  the  materials  for  the  register." 

On  this  case  the  questions  were — 

1.  Whether  on  a  true  construction  of  this  fourteenth  article  of 
the  treaty,  Hall  himself  had  held  the  two  and  a  half  sections 
adjoining  the  one  on  which  he  lived  in  trust  for  his  children  ? 

2.  Whether,  if  he  had  himself  held  the  sections  in  trust,  Wilson, 
a  bona  fide  purchaser  for  value,  was  affected  with  notice  of  that 
trust,  the  same  not  having  been  set  forth  on  the  face  of  the  patent 
to  Hall  ? 

The  Supreme  Court  of  Alabama,  where  the  suit  finally  went  in 
that  State,  was  of  the  affirmative  opinion  on  both  points.  (See 
34  Alabama.  228.) 

On  the  first  question,  that  court's  view  was, — although  a  grant 
to  one  person  for  another,  ordinarily  created  a  trust. — that  here 
the  expression  ••for  each  unmarried  child"'  might  be  admitted,  if 


Wilson  v.  Wall.  287 

by  itself,  to  be  equivocal.  But  the  words  immediate!}'  following. 
•'  and  a  quarter-section  to  such  child  as  may  be  under  ten."  the  court 
thought  shed  light  on  the  previous  obscure  expression,  and  suffi- 
ciently indicated  the  sense  in  which  it  was  used.  This  was  made 
more  plain,  the  court  considered,  by  the  direction  that  the  lands 
given  in  respect  to  the  children  should  "adjoin the  location  of  the 
parent."'  What  was  meant  by  the  location  of  the  parent  ?  Obvi- 
ously the  section  on  which  the  parent's  "improvement"  was 
situated,  where  he  lived,  and  which  was  reserved  to  him  in  abso- 
lute right.  Lands  which  adjoined  a  parent's  could  hardly  be 
deemed  lauds  of  the  parent  himself.  The  construction  given  to 
the  article  by  the  executive  department  of  the  government,  and 
the  form  in  which  the  patents  were  issued  could  not,  the  court 
conceived,  change  the  meaning  of  the  words  of  the  treaty%  nor 
control  any  court  in  interi)reting  them.  There  was.  therefore,  a 
trust  for  the  children. 

On  the  second  question,  the  Supreme  Court  of  Alaliama  thought 
that  as  Wilson  knew  when  he  made  his  purchase  that  Hall  was 
•'the  Choctaw  head  of  a  family"'  and  that  his  right  arose  under 
the  treaty,  he  ought,  as  a  prudent  man.  to  have  inquired  further. 
Lord  Mansfield's  language  in  Keech  v.  Hcdl  (Douglas.  22),  was 
that,  "  whoever  wants  to  be  secure  should  inquire  after  and  exam- 
ine the  title  deeds."  Had  Wilson  made  an  examination  of  the 
treaty  it  would  have  informed  him — so  the  court  considered — that 
the  right  of  Hall  was  confined  to  the  single  section  on  which  his 
improvement  was  situated,  and  that  all  the  rest  of  the  land  was 
for  his  children.  He  had  failed  to  make  an  inquiry  which  it  was 
his  duty  to  make  ;  and  a  court  of  equity  would  accordingly  treat 
him  as  if  he  liad  actual  notice. 

Judgment  having  gone,  therefore,  in  favor  of  the  children,  the 
case  was  now  for  review,  hei'e.  where  it  was  fiilly  argued  by 
Mi\  P.  Phillips  for  the  appellants,  in  opposition  to  the  view 
enforced  by  the  State  Court  of  Alabama,  in  its  opinion  as  above 
presented. 

No  opposite  counsel  appeared. 

Mr.  Jt^stice  Gri-EIi  delivered  the  opinion  of  the  court. 

When  the  United  States  acquired  and  took  possession  of  the 
Floridas  under  the  Louisiana  treaty,  the  treaties  which  had  been 
made  with  the  Indian  tribes  remained  in  force  over  all  the  ceded 
territories,  as  the  laws   which  regulate  the   relations  with  all  the 


288  Wilson  r.  Wall. 

Indians  who  were  parties  to  them.  They  were  bindiuii  on  the 
United  States  as  the  fnndamcntal  laws  of  Indian  right,  acknowl- 
edged by  royal  orders  and  municipal  regulations.  By  these,  the 
Indian  right  was  not  merely  of  i^ossession.  but  that  of  aliena- 
tion. 

The  parties  to  this  contract  mayjustly  be  i)resumed  to  have  had 
in  view  tlie  previous  custom  and  usages  with  regard  to  grants  to 
persons  "  desirous  to  become  citizens."  The  treaty  suggests 
they  are  "  a  people  in  a  state  of  rapid  advancement  in  education 
and  refinement.""  But  it  does  not  follow  that  they  were  acquainted 
with  the  doctrine  of  trusts.  With  them  lands  were  either  held  in 
common  by  the  whole  nation  or  tribe,  and  the  families  were  its 
fractions  or  portions.  The  head  of  the  family  could  dispose  of  the 
propei'ty  of  the  family  as  the  heads  of  the  tribe  or  nation  could 
that  of  the  nation. 

Under  the  Spanish  and  French  dominions,  grants  of  land  wei'e 
always  made  to  individuals  in  proportion  to  the  number  of  per- 
sons composing  the  family.  Thus,  in  Frlquc  v.  Hopl'ins  (4  Mar- 
tin. 212).  the  court  said  as  follows  : 

•'  By  the  regulations  of  the  Spanish  government,  if  the  individual 
who  applied  for  land  was  unmarried,  a  certain  quantity  was  given 
to  him  ;  if  he  had  a  wife  this  quantity  was  increased,  and  if  he 
had  children  an  additional  number  of  acres  were  conceded.  Now. 
if  the  circumstances  of  his  being  married  made  the  thing  given 
become  the  property  of  both  husband  and  wife,  we  must,  on  the 
same  principle,  hold  that  where  children  were  the  moving  cause, 
they  too  should  be  considered  as  owners  in  common  of  the  land 
conceded.  That  such  was  the  effect  of  the  donee  having  a.  family, 
ivas  never  even  suspected.  It  certainly  is  unsupported  by  laio. 
Many  donations  are  made  in  which  the  donee's  having  a  wife  and 
being  burdened  with  a  large  family  is  a  great  consideration  for  the 
beneficence  of  the  donor,  but  this  motive  in  him  does  not  prevent 
the  person  to  whom  the  gift  is  made  from  being  considered  its 
owner,  nor  prevent  the  thing  from  descending  to  his  heirs." 

We  can  hardly  expect  the  Indians  to  be  very  profound. on  the 
subject  of  adverbs  or  prepositions,  and  the  agents  of  the  govern- 
ment do  not  seem  to  have  exhi])ited  much  greater  knowledge  of 
the  proprieties  of  grammar,  or  they  would  not  haA^e  left  this  sec- 
tion of  the  treaty  capable  of  misconstruction  or  doubt  when  it  was 
so  easy  to  avoid  it.  The  words  of  this  14th  section  of  the  treaty 
were  construed  by  Mr.  Secretary  Cass,  to  give  to  the  parent  the 


Wilson  v.  Wall.  289 

title  to  the  whole.  This  construction  had  been  the  uniform  one 
of  the  department  in  executinsr  the  treaty,  and  patents  were  issued 
accordingly,  of  the  correctness  of  which  no  doubt  was  entertained. 
The  register  of  those  that  applied  to  the  agent  under  the  article, 
contained  the  names  of  the  heads  of  families  only,  which  would  seem 
to  show  the  Indian  construction  of  the  contract  or  treaty.  Accord- 
ingly, on  the  29th  of  June,  1841,  a  patent  was  granted  to  William 
Hall,  not  for  himself  and  his  childi*en,  but  to  him  and  his  heirs. 
At  this  time  the  Secretary  had  no  means  of  ascertaining  the  names  ' 
of  tiie  children  so  that  separate  patents  might  be  given  them  in 
case  of  a  ditferent  construction  given  to  the  treaty.  In  all  other 
of  the  numerous  treaties  made  with  the  Indians  (more  of  them 
made  by  Governor  Cass  than  by  any  other  person)  where  lands 
were  reserved,  or  agreed  to  be  granted  to  any  Indian,  the  name  of 
the  grantee  and  quantity  to  be  given  were  carefully  stated  in 
the  treaty. 

As  this  section  of  the  treatj^  was  capable  of  a  different  con- 
struction, Congress,  on  the  23d  of  August,  1842,  in  order  to  save 
something  for  the  children  from  the  folly  or  incapacity  of  the 
parent,  appointed  commissioners  with  full  power  to  examine  and 
ascertain  the  names  of  the  parties  who  had  fulfilled  the  conditions 
of  settlement  to  entitle  them  to  patents  for  their  land,  and  ascer- 
tain the  quantity  for  each  child.  '■  ((ccorrling  to  tJiP  limitations 
contained  in  said  article.''  . 

Now,  while  it  is  freely  conceded  that  this  construction  given  to 
the  treaty  should  form  a  rule  for  the  subsequent  conduct  of  the 
department,  it  cannot  affect  titles  before  given  by  the  government, 
nor  does  it  pretend  to  do  so.  Congress  has  no  constitutional 
power  to  settle  the  rights  under  treaties,  except  in  cases  purely 
political.  The  construction  of  them  is  the  peculiar  province  of 
the  judiciar^'^,  when  a  case  shall  arise  between  individuals.  The 
legislature  may  prescribe  to  the  executive  how  any  mere  admin- 
istrative act  shall  be  performed,  and  such  was  the  only  aim  and 
purpose  of  this  act. 

In  the  Cherokee  treaty,  where  a  grant  of  640  acres  was  given 
to  persons  "willing  to  become  citizens,"  a  life  estate  only  was 
given  to  the  settlers,  with  reversion  to  his  children.  This  treaty 
makes  no  such  provision  for  children.  The  construction  given  by 
the  representatives  of  both  parties  to  the  treaty,  and  the  grants 
issued  under  it  were  not  revoked,  nor  could  they  be  by  mere 
legislative  act,  founded  on  a  different  construction  of  a  doubtful 

19 


290  Wilson  v.  Wall. 

article  of  the  treaty.  The  treaty  only  describes  the  person  who 
is  contingently  entitled  to  the  reservation.  He  must  be  a  Choctaw, 
and  a  head  of  a  family,  and  desirous  not  only  to  remain,  but  must 
signify  to  the  agent  his  intention  to  do  so. 

These  are  conditions  precedent,  on  the  performance  of  which 
he  shall,  '■'thereupon  be  entitled  to  a  reservation  of  640  acres,  and 
in  like  manner  shall  be  entitled  to  half  that  quauntit}^  for  each 
unmarried  child  which  is  living  with  him  over  ten  years,  and  a 
quarter-section  to  such  child  as  may  be  under  ten  years,"  and  if 
they  reside  upon  the  land,  intending  to  become  citizens  for  Ave 
years,  &c.,  "a  grant  iu,  fee  simple  shall  issue,"  &c. 

The  father  alone  could  fufiU  the  conditions  ;  he  would  not  be 
entitled  to  the  additional  land  unless  for  a  child  that  "was  living 
with  him." 

The  treaty  did  not  operate  as  a  grant,  and  a  patent  was  neces- 
sary to  the  person  who  alone  could  perform  the  conditions. 

We  do  not  consider  it  necessary  to  vindicate  the  conclusion  to 
which  we  have  arrived  in  the  case,  by  further  argument  on  the 
grammatical  construction  of  this  section  of  the  treaty. 

Assume  that  the  construction  put  on  the  treaty  by  the  court 
below  may  possibly  be  correct.  What  then  are  the  facts  of  the 
case  ?  The  complainants  below  have  applied  to  a  court  of  chan- 
cery, which  should  be  a  court  of  conscience,  to  vacate  the  title  of 
a  bona  fide  purchaser,  who  purchased  and  paid  his  money  and 
expended  a  life's  labor  on  land  granted  by  patent  from  the  United 
States,  conveying  a  fee  simple  estate,  which  was  issued  by  the 
officers  of  the  government  without  intention  of  imposing  any  trust 
on  the  grantee,  or  limiting  it  on  the  face  of  the  deed.  It  is  con- 
tended that  the  purchaser  is  affected  with  notice  of  the  terms  of 
the  treaty  referred  to  in  his  patent. 

If  there  be  any  trust  for  children  it  must  be  a  constructive  trust, 
which  is  negatived  by  the  express  terms  of  the  grant.  How  can  a 
chanceller  build  up  by  the  words  for  and  to — words  of  equivocal 
import  and  doubtful  construction — an  equitable  title  in  the 
children  ?  The  fact  is  clear  that  such  was  not  the  construction 
under  which  the  grantor  gave  the  deed,  or  the  grantee  accepted 
it.  A  chancellor  will  not  be  astute  to  charge  a  constructive  trust 
upon  one  who  has  acted  honestly  and  paid  a  full  and  fair  con- 
sideration without  notice  or  knowledge.  On  this  point  we  need 
only  to  refer  to  Sugden  on  Vendors,  page  622,  where  he  says  : 

"In    Ware  v.   Lord   Egmont  the  Lord   Chancellor  Cranworth 


Smith  v.  Stevens.  291 

expressed  his  entire  concurrence  in  what,  on  many  occasions  of 
late  j-ears,  had  fallen  from  judges  of  great  eminence  on  the  subject 
of  constructive  notice,  namely,  that  it  was  highly  inexpedient  for 
courts  of  equity  to  extend  the  doctrine.  When  a  person  has  not 
actual  notice  he  ought  not  to  be  treated  as  if  he  had  notice,  unless 
the  circumstances  are  such  as  enable  the  court  to  say,  not  only 
tliat  he  migJit  have  acquired,  but  also  that  he  ought  to  have 
acquired  it  but  for  his  gross  negligence  in  the  conduct  of  the 
business  in  question.  The  question  then,  when  it  is  sought  to 
affect  a  purchaser  with  constructive  notice,  is  not  whether  he  had 
the  means  of  obtaining  and  might  by  prudent  caution  have 
obtained  the  knowledge  in  question,  but  whether  not  obtaining 
was  an  act  of  gross  or  culpable  negligence." 

The  application  of  these  principles  of  equity  to  the  present  case 
is  too  apparent  to  need  further  remark. 

Jud()ment  reversed. 

1.  Held  the  same  midev  the  VVyaucIotte  treatj^  of  .Tanuary  ;^1,  185.'). 
Hicks  V.  Biifrick,  3  Dill.,  41;^  :  Summer  v.  Spi/buck,  1   (vans.,  304. 

It  was  held  differently  under  the  Chickasaw  ti-eaty  of  May  24,  1834, 
Pickens  V.  Hnrp'ir^  1  Suiede.s  and  .M.  (  h  ,  (.Miss.,)  ">30. 


S>nTH  V.  Stevens. 
December  Term,  ISTO  —10  Wallace.  321. 

1.  Under  the  act  of  Congress  of   May  2()th,  ISfiO,  referring  to  the  treaty 

of  .Uiiie3d.  18J.";,  between  the  ITnited  States  and  the  nation  of  Kansas 
Indians  (which  reserved  certain  tracts  of  land  for  the  benefit  of  par- 
ticular half-breed  Kansas  Indians  named),  and  granting  "ihetitle^ 
interest  and  estate  of  the  United  States"  to  the  reservees  mentioned 
in  that  treaty,  and  providing  that  the  Secretary  of  the  Interior, 
when  requested  by  any  one  of  the  Indians  named,  "'is  hereby  author- 
ized" to  sell  the  piece  reserved  for  such  Indians;  the  reservees  had 
no  authority  to  sell  th  ■  lands  independently  of  assent  by  the  Secre- 
tary of  the  interio',  and  any  such  sale  was  void. 

2.  A   statute  granting  pieces  of  lands   to   Indians,   and  prescribing  a 

specific  mode  in  which  they  may  sell,  forbids  by  implication,  a  sale 
independently  of  the  mode. 

Error  to  the  Supreme  Court  of  the  State  of  Kansas,  the  case 
being  thus  : 

By  treaty  of  June  3d,   1825  (7  Stat,  at  Large,  244,   245),  the 


292  Smith  v.  Stevens. 

United  States  coucluded  a  treaty  witli  the  Kansas  Indians,  con- 
taininsc  mutual  cessions  of  territory.  Tlie  sixth  article  of  the 
treaty  contained  a  provision  that  there  should  be  reserved,  for 
the  benefit  of  each  of  the  half-breeds  of  the  Kansas  Indians 
named  in  it  (Victoria  Smith  beina:  one  of  them),  a  certain  specified 
allotment  of  land  out  of  the  quantity  ceded  by  the  nation  to  the 
United  States,  to  be  located,  &c. 

By  tlie  eleventh  article  of  the  treaty  it  was  stipulated  that  "the 
said  Kansa:^  Nation  shall  never  sell,  relinquish,  or  in  any  manner 
dispose  of  the  lands  therein  reserved,  to  any  other  nation,  person, 
or  persons  whatever,  without  the  permission  of  the  United  States, 
foi-  that  i)urpose  first  had  and  obtained,  and  shall  ever  remain 
under  the  protection  of  the  United  States,  and  in  friendship  with 

them.'* 

The  lands  were  afterwards  surveyed,  located  and  numbered, 
according  to  the  treaty,  and  the  half-breed  Indians  took  posses- 
sion each  of  his  own  reservation. 

Subsequently  to  this,  that  is  to  say,  May  26th.  1860  (12  Stat,  at 
Large.  21),  Congress  passed  an  act.  which,  referring  to  the  treaty 
of  1825,  and  reciting  that  the  land  reserved  "  had  been  surveyed 
and  allotted  to  each  of  the  said  half-breeds  in  the  order  in  which 
they  are  named,  in  and  in  accordance  with  the  provision  of  the 
said  sixth  article,"  enacted  : 

"That  all  the  title,  interest  and  estate  of  the  United  States  is 
hereby  vested  in  the  said  reservees,  who  are  now  living  on  the 
land  reserved,  set  apart  and  allotted  to  them  respectively  by  the 
said  sixth  article  of  said  treaty ;  *  *  *  but  nothing  herein 
contained  shall  be  construed  to  give  any  force,  efficacy,  or  bind- 
ina:  effect  to  any  contract',  in  writing  or  otherwise,  for  the  sale  or 
disposition  of  any  lands  named  in  this  act.  heretofore  made  by 
any  of  said  reservees  or  their  heirs.'' 

The  second  section  of  this  act  provides  that : 
••  In  case  any  of  the  reservees  now  living,  or  any  of  the  heirs  of 
any  deceased  reservees.  shall  not  desire  to  reside  upon  or  occupy 
the  lands  to  which  such  reservees  or  such  heirs  are  entitled  by 
the  provisions  of  this  act.'  the  Secretary  of  the  Interior,  when 
requested  by  them,  or  either  of  them,  so  to  do,  is  hereby  author- 
ized to  sell  such,  lands  belonging  to  those  so  requesting  him,  for 
the  benefit  of  such  reservees  or  such  heirs,  *  *  *  in  accord- 
ance with  such  rules  and  regulations  as  may  be  prescribed  by  the 
Commissioner  of  Indian  Affairs  and  approved   by  the   Secretary 


Smith  v.  Stevens.  293 

of  the  Interior  ;  and  patents  in  the  usnal  form  shall  be  issued  to 
the  purchasers  of  the  said  land,  in  accordance  with  the  provisions 
of  this  act." 

Section  third  provides  that  the  proceeds  of  the  sales  "  shall  be 
paid  to  the  parties  entitled  thereto,  or  applied  by  the  Secretary  of 
the  Interior  for  their  benefit,  in  such  manner  as  he  may  think  most 
advantageous  to  the  parties." 

These  statutes  being  in  force.  Victoria  Smith,  one  of  the  half- 
breeds  named  in  the  treaty  of  1825,  being  in  possession  of  her  tract, 
executed,  on  the  14th  of  August,  1860,  a  deed  to  one  Stevens, 
purporting  to  convey  it  to  him,  and  Stevens  went  into  possession. 

About  two  years  after  this  deed  was  made,  that  is  to  say,  on 
the  17th  of  .July.  1862  (12  Stat,  at  Large.  628),  Congress,  by  joint 
resolution,  repealed  the  above  mentioned  second  and  third  sec- 
tions of  the  act  of  1860. 

Victoria  Smith  now  brought  an  action  of  ejectment  against 
Stevens  in  a  local  State  court  in  Kansas,  to  recover  possession 
of  the  tract.  Stevens,  in  bar  of  the  suit,  offered  in  evidence 
Victoria's  deed  of  the  14th  August,  1860,  for  the  same  land,  but 
the  court  excluded  the  deed  from  the  jury  on  the  ground  that  the 
plaintiff,  by  virtue  of  the  Indian  treaty  of  1825,  and  the  act  of 
Congress  on  the  subject,  was  prohibited  from  executing  the  deed. 

The  Supreme  Court  of  the  State,  on  appeal,  affirmed  the  ruling 
of  the  lower  court,  and  the  case  was  brought  here  to  test  the  cor- 
rectness of  that  decision. 

Messrs.  Denver,  Bradley  and  Hughes  for  the  plaintiff  in  error: 

1.  Upon  the  survey  and  location  of  the  sections  of  land  respec- 
tively, and  the  delivery  of  possession  to  the  respective  reservees, 
they  were,  by  the  terms  of  the  treaty  of  1825.  and  though  there 
were  no  words  of  perpetuity  in  the  reservations,  respectively 
clothed  with  a  fee  simple  title  in  those  reservations.  No  patent 
was  necessary  to  complete  the  title.  United  States  v.  Brooks.  10 
Howard,  442  :  Doe  v.  Wilson,  23  Howard.  457,  463.  464. 

2.  But.  if  the  title  did  not  pass  by  the  treaty,  it  did  pass 
in  fee  by  the  act  of  Congress,  26th  May,  1860,  and  the  reservees, 
after  that  act,  had  the  right  to  make  a  deed  in  fee.  The  words 
of  conveyance  are  very  comprehensive.  The  statute  is  a  grant, 
and  is  to  be  taken  most  favorably  for  the  grantees.  There  is 
nothing  left  in  the  United  States  which  could  draw  to  it  the  rever- 
sion. Words  of  perpetuity  in  such  an  instrument,  made  with 
such  full  intent,  were  not  needed. 


294  Smith  v.  Stevens. 

If  they  "vested"  the  fee  in  the  grantees,  any  restraint  upon 
alienation  would  have  been  void.  They  took  freed  from  such 
condition,  if  there  was  one.  And  so  Congress  seem  to  have  con- 
sidered it,  for  they  do  not  prohibit  future  alienation. 

Since,  then,  to  allow  the  second  and  third  sections  of  this  act 
to  be  restraints  on  the  disposing  power  of  tlie  grantees,  and  to 
limit  that  power  to  an  application  to  the  Secretary  of  the  Interior, 
by  whom  the  sale  was  autliorized  to  be  made,  would  be  a  plain 
violation  of  one  of  the  canons  of  the  law  regulating  real  estate,  no 
such  construction  can  be  given,  unless  the  intent  is  too  clear  to 
admit  of  doubt,  such  construction  cannot  prevail. 

Those  two  sections  are  susceptible  of  a  different  construction, 
in  harmony  with  the  construction  already  put  upon  the  first  sec- 
tion. The  government  had  already  conveyed  the  lands  to  the 
Indians  with  an  unincumbered  title  ;  but  they  desired  to  protect 
the  Indians  against  their  own  improvidence,  and  to  do  so  imposed 
this  trust  on  the  secretary,  to  be  exercised  on  the  application  of  the 
owner  of  the  lands.  It  was  a  new  duty  assigned  to  the  secretary, 
but  neither  in  terms  nor  by  necessary  intendment  does  it  fetter 
the  right  of  the  Indian  to  dispose  of  his  lands  as  he  may  see  fit. 
This  view  reconciles  the  act  with  the  established  principle  of 
law ;  and  this  view  is  strengthened  by  the  terms  of  the  eleventh 
article  of  the  treaty  prohibiting  the  sale  of  the  lands  reserved  to 
the  nation,  but  not  prohibiting  the  sale  of  the  private  reservations. 

Again  :  There  is  no  prohibition  in  either  tlie  treaty  or  the  act 
of  1860  against  future  sales.  The  Indian  had  clearly  a  title  to 
the  possession  with  an  inchoate  title  to  the  fee.  Being  in  such 
possession,  Victoria  conveyed  whatever  title  she  had.  Congress, 
•by  the  joint  resolution  of  July  17th,  1862.  repealed  the  second 
and  third  sections  of  the  act  of  1860.  This  repeal  operated  by 
relation  to  vest  in  the  purchaser  the  full  title  which  was  vested 
■in  her  by  the  first  section  of  the  act  of  1860. 

Mr.  J.  S.  Blacl:  contra,  citing  Goodell  v.  Javlson,  20  Johnson, 
694,  718,  733;  Shawnee  County  \.  Carter,  2  Kansas  State,  115; 
Hunt  V.  KnicJx-erbocker,  5  Johnson,  332-34  ;  St.  Regis  Indians  v. 
Dram,  19'  Id.,  127';  Jackson  v.  Wood,  7  Id.,  290  \  PettiVs  Adminis- 
trators V.  Pettifs  Distributees,  32  Alabama,  288  :  Lee  v.  Glover,  8 
Cowen,  189. 

Mk.  Justice  Davis  delivered  the  opinion  of  the  court. 

The  eleventh  article  of  the  treaty  of  182,5  contains  a  stipulation 


Smith  r.  Stevens.  295 

that  the  nation  shall  not  sell  the  specified  allotment  of  lands 
reserved  for  the  benefit  of  each  of  the  half-breeds  named  in  it 
(Victoria  Smith  being  one  of  them)  withont  the  permission  of  the 
government,  and  it  would  seem  that  the  contracting  parties  in- 
tended this  prohibition  to  apply  to  the  individual  members  of  the 
tribe  ;  for,  if  it  were  not  so,  the  polic.y  which  dictated  the  restric- 
tion would  be  in  danger  of  being  defeated  altogether. 

It  is,  however,  not  necessary  for  the  purpose  of  this  suit  to 
decide  this  point,  as  the  deed  in  question  was  made  after  the 
passage  of  act  of  Congress  of  the  26th  day  of  May,  1860.  which 
relieves  the  subject  of  all  ditliculty.  This  act  vested  the  title  of 
the  United  States  to  the  lands  which  the  treaty  had  set  apart  for 
the  use  of  the  half-breeds  in  the  reservees.  if  living,  or.  if  dead, 
in  their  heirs,  and  declared  void  all  prior  contracts  for  tlieir  sale, 
and  forbade  any  fnrture  disposition  of  them  except  by  the  Secre- 
tary of  the  Interior  on  the  request  of  the  party  interested. 

There  is  no  ambiguity  in  the  act,  nor  is  it  requisite  to  extend 
the  words  of  it  beyond  their  plain  meaning  in  order  to  arrive  at 
the  intention  of  the  legislature.  It  was  considered  by  Congress 
to  be  necessary',  in  case  the  reservees  should  be  desirous  of  relin- 
quishing the  occupation  of  their  lands,  that  some  method  of  dis- 
posing of  them  should  be  adopted  which  would  be  a  safeguard 
against  their  own  improvidence,  and  the  power  of  Congress  to 
impose  a  restriction  on  the  right  of  alienation  in  order  to  accom- 
plish this  object  cannot  be  (juestioned.  "Without  this  power  it 
is  easy  to  see  there  would  be  no  way  of  preventing  the  Indians 
from  being  wronged  in  contracts  for  the  sale  of  their  lands,  and 
the  history  of  our  country  aflords  abundant  proof  that  it  is  at 
all  times  difficult  by  the  most  careful  legislation  to  protect  their 
interest  against  the  superior  capacity  and  adroitness  of  their 
more  civilized  neighbors.  It  was,  manifestly,  the  purpose  of  Con- 
gress in  conferring  the  authoritj^  to  sell  on  the  Secretary  of  the 
Interior  to  save  the  lands  of  the  reservees  from  the  cupidity  of 
the  white  race  ;  and.  if  the  provisions  of  the  treaty  were  not 
enough  for  the  purpose,  the  speedy  action  of  Congress  was  de- 
manded by  the  rapid  settlement  of  the  adjacent  country.  In 
1825.  when  the  treaty  was  made,  it  was  not  regarded  as  a  probable 
event  that  these  Indians,  owing  to  the  remoteness  of  the  countiy 
to  which  they  were  removed,  would  suffer  from  the  encror.ehments 
of  our  people,  but  in  1860  the  same  population  that  had  demanded 
their  removal  from  organized  communities  followed  them  to  Kansas. 


296  Smith  v.  Stevei^s. 

In  this  coiiditioii  of  tilings  Congress  acted  ;  and  the  necessity  for 
legislation  on  the  subject,  if  indeed  there  were  need  for  any,  is 
shown  by  the  defence  which  is  interposed  to  this  suit. 

It  needs  no  argument  or  autliority  to  show  that  the  statute, 
having  provided  the  way  in  which  tliese  lialf-breed  lands  could  be 
sold,  by  necessarj^  implication  prohibited  their  sale  in  any  other 
way.  The  sale  in  question  not  only  contravened  the  policy  and 
spirit  of  the  statute,  but  violated  its  positive  pro-sisions. 

It  appearing,  then,  tliat  by  the  treat}''  and  law  in  force  at  the 
date  of  the  deed.  Victoria  Smith  liad  no  capacity  to  alienate  her 
land,  and  the  authority  to  sell  being  vested  in  the  Secretary  of  the 
Interior,  and  there  being  no  evidence  that  this  officer  ever  author- 
ized the  sale  or  in  any  manner  consented  to  it,  it  follows  that  the 
sale  was  void,  and  that  the  deed  conveys  no  title  to  the  purchaser. 

It  is  hardly  necessary  to  say  that  a  joint  resolution  passed 
nearly  two  years  after  this  transaction,  removing  the  restriction 
on  alienation,  cannot  relate  back  and  give  validity  to  a  conveyance 
which,  when  executed,  was  void  ;  nor  have  we  any  reason  to  sup- 
pose that  Congress  contemplated  that  any  such  effect  would  be 
claimed  for  its  legislation  on  the  subject. 

Jiidr/riiciif  (tffirme<l. 


Note. —  1  he  allotment  of  lands  to  the  Stockbridge  Indians  imder  the  act 
of  March  M.  1 843,  gave  to  the  allottee  an  equitable  estate  in,  or  title  to  the 
land,  wliicli  could  be  sold  o]-  transferred  hy  deed,  and  the  patent  subse- 
quently issued  to  him  would  ennre  to  the  benefit  of  his  grantee,  although 
his  couvej-ance  was  by  quit-claim  deed.     Quinney  v.  Denncy^  18  Wis.,  485. 

The  restriction  against  alienation  contained  hi  the  Winnebago  Indian 
treaty  of  August  1st.  ls-2'.),  Is  personal  to  the  patentee  and  does  not 
extend  to  liis  lie'rs.  Fdninglur,  \.  Wilson.  29  VVis.,  B83;  Upon  the  death  of 
the  patentee  the  land  becomes  subject  to  the  payment  of  his  debts. 
Siizmanv.  Fucqitcite,  13  VVis.,  291.  Held  the  same  in  Lowry  y.  Weaver^  4 
McLean,  82  ;■  Brown  v.  Belmaxic,  3  Kans.,  41. 

Where  the  President  approved  a  sale,  made  by  a  reservee.  of  liis  land, 
his  successor  in  office  cannot  revoke  and  annul  the  approval.  The  attempt 
to  annul  the  approval  of  his  predecessor  was  null  and  void.  Godfrey  v. 
Beurdsky,  2  McLean,  412. 

Where  the  President  directs  that  tlie  land  belonging  to  a  reservee  may 
be  sold  at  a  fixefl  price,  a  sale  for  less  than  the  price  named  is  void,  and 
the  President's  subsequent  approval  of  the  sale  will  not  validate  it. 
Harris  v.  McKisxack,  34^Iiss..  404. 

The  laws  of  the  State  have  no  application  as  to  the  mode  of  alienation 
of  lands  granted  by  the  Miami  treaty  of  June  5, 1854,  so  long  as  the  title 


Smith  v.  Stevens.  29T 

remains  in  the  patentee,  as  the  treaty  prescribes  the  mode  of  alienation. 
Muiigosnh  v.  Steinbrook,  3  Dillon,  418. 

The  land  granted  to  the  reservee  could  not  he  sold  hy  him  without  the 
President's  approval.  Nile.t  v.  Anderson,  h  How.,  (Miss.)36o  ;  Harmon  v. 
PaHkr,  12  Smedes  &  M.  (:Miss.)  425.  But  if  the  sale  was  made  bona  fide, 
and  the  conditions  were  not  certified  to  as  required  hy  the  tn'aty.  by 
reason  of  the  fraud  of  the  reservee  in  preventing  it,  tlie  conditions  may  be 
shown  in  a  court  of  equity.  Anderson  v.  Lewis,  1  Freeman  Ch.,  (Miss.)  178. 
The  chiefs  have  no  authority  to  dispose  of  the  land  reserved  and  set 
apart  for  the  absentee  Indians,  even  with  the  consent  of  the  Secretary  of 
the  Interior.     Hale  v.  IVilder.  8  Kan.,  545. 

A  patent  issued  to  the  grantee  of  the  reservee  will  give  him  a  valid 
title,  even  if  the  conveyance  upon  \vhich  the  patent  issued  was  not  under 
seal,  provided  it  had  been  approved  by  the  President.  Tarvee  v.  Smith, 
38  Ala.,  135.  A  quit-claim  deed  will  be  sufficient,  when  approved  by  the 
President.  Nolan  \\  Gici/n^Mi  Ala.,  725;  Lo7u/  v.  McDonald, -I'l  Ala., 
413.  The  land  then  might  be  sold  under  execution.  Jones  \.  Walker, 
47  Ala.,  175. 

Under  the  Chickasaw  treaty  of  October,  20,  1832,  a  contract  of  lease 
or  sale  by  the  reservee  is  void,  and  the  additonal  article  of  the  treaty  of 
May  24, 1834,  did  not  validate  contracts  previously  made.  Lewis  v.  Love, 
1  Ala.,  335;  PeHiix.  Peitit,  32  Ala.,  288. 

Land  reserved  to  the  head  men  of  the  tribe  could  not  be  sold  during 
the  five  years  succeeding  the  ratification  of  the  treaty  to  any  one  excep- 
ting Ottawa  Indians.  Clark  v.  Libbey,  1 4  Kan .,  435  ;  and  a  conveyance  to 
an  Ottawa  Indian  was  void  unless  approved  by  the  Secretary  of  the  Inter- 
ior. If  such  deed  be  not  approved  by  the  Secretary  a  second  deed  executed 
to  another  after  the  restrictions  were  removed  by  the  five  years  having 
elapsed,  will  convey  the  absolute  title,  and  not  be  afi'ected  in  any  man- 
ner by  the  previous  void  deed.     Clark  v.  Akers,  IG  Kan.,  166. 

Under  the  Osage  treaty  of  January  21,  1867,  the  deed  of  the  reservee, 
when  approved  by  the  Secretary  of  the  Interior  related  back  to  the  date 
of  selection,  and  was  conclasive  as  against  any  rights  to  the  land  which 
did  not  exist  at  the  date  of  selection.     Lownsberry  v.  Rakcsiraw,  14  Kan., 

151. 

A  sale  or  conveyance  of  land  reserved  under  this  treaty  to  the  Indians, 
to  any  one  except  a  member  of  the  tribe  or  the  United  States,  is  prohib- 
ited and  void.     Penuock  v.  Monroe,  5  Kan.,  578. 

A  levy  and  sale  of  the  land  under  execution,  reserved  by  the  Wyan- 
dotte treaty,  to  an  orphan  reservee  even  after  he  becomes  of  age,  was 
void,  and  the  ratification  of  such  sale  by  the  Secretary  of  the  interior 
could  not  make  it  valid.     Frederick  v.  Graij.  12  Kan..  518. 

A  deed  by  a  reservee  conveying  land  reserved  under  the  Pottawatonue 
treaty,  could  not  operate  as  a  conveyance  to  pass  the  title  to  tlie  land, 
until  approved  by  the  President ;  but  after  approval  the  deed  took  efiect 
from  its  date.     AsJdey  v.  Eberts,  22  Ind.,  55. 

The  approval  of  the  President  was  not  necessary  to  tiie  validity  of  the 


298  Walker  v.  Henshaw. 

di'cil  (if  a  n'liardiaii  for  tin'  minor  lii'irs  of  a  deceased  reservee.  Dcqmii- 
(irr  V.   iliUiaviK.  SI  Ind..  444  ;  Johns  v.  De  liomi\  o  Hlackf.,  421. 

Under  the  Clierokee  treaty  of  July  8,  1S17,  a  lease  or  sale  of  the  land 
reserved  is  void,  and  the  act  of  May  '20,  1S3(),  relinquishing  the  right  of 
the  I'nited  States  to  the  land,  and  vesting  the  title  in  tlie  reservees,  does 
not  validate  such  lease  or  sale.  Kemwty  v.  McVartnei/,  4  Porter, 
(Ala.i.  141. 

'I'he  land  in  (juestion  was  witiiin  tlie  reserve  set  apart  for  the  perma- 
nent homos  of  the  i  hippewas,  by  treaty  of  February  -22,  IS.j.").  The 
reserve  was  ceded  to  the  I'nited  States  by  treaty  of  May  7,  1864,  but 
this  tract  was  expressly  excepted  irom  the  cession.  Hehl,  'i'hat  it 
retained  its  original  character  as  an  Indian  reservation,  oxer  which  the 
jurisdiction  of  the  state,  for  civil  purposes  at  least,  did  not  extend,  and 
that  the  estate  of  the  deceased  reservee  cannot  be  administered  upon  by 
the  State  courts.      T.  N.  ex  re/,  v.  Shanks,  Iri  Minn..  .'JiJit. 


Walkek  v.  Henshaw. 

December 'rerm,  1872— Hi  Wallace,  4:!'!. 

Fi-ior  to  the  9th  of  Inly,  lS.'i8.  when  the  I'resident  set  apart  the  surplus 
of  land  which  remained  after  the  Shawnee  Indians  had  obtained 
their  complement  under  tlie  treaty  of  the  United  States  with  them, 
ratitied  November  2d,  KS.')-),  and  opened  such  surplus  to  pre-emption 
and  settlement,  an  Indian  of  the  Wyandotte  tribe  could  not  locate 
"a  float"  held  by  him  under  the  treaties  of  the  United  States  made 
with  his  tribe  October  nth,  1842.  and  1st  of  March.  1S.5."). 

Eruou  to  the  Supreme  C^ourt  of  Kansas  ;  the  case  being  thus  : 

Walker  and  others  brought  an  action  under  the  civil  code  of 
Kansas  to  try  title  to  and  get  possession  of  a  section  of  land  in 
Douglas  county,  Kansas,  being  "  parcel  of  tlie  lands  ceded  to  the 
United  States  by  the  Shawnee  tribe  of  Indians,  by  treaty  ratified 
NovemVier  2d,  1854,  (10  Stat,  at  Large.  1056),  and  lying  between 
the  Missouri  State  line  and  a  line  jiarallel  thereto,  and  west  of  the 
same  thirty  miles  distant." 

The  condition  of  these  lands,  as  gathered  from  the  provisions 
of  cei-tain  Indian  treaties  and  the  laws  of  Congress,  was  as  follows  : 

By  articles  of  convention,  made  between  AYilliam  Clarke,  super- 
intendent of  Indian  affairs,  and  the  ShavvoeH,  of  November  7th, 
1825,  in  exchange  for  their  lands  near  Cape  Girardeau,  cm  the 
Mississippi,  held  under  the  authority  of  the  Spanish  government, 
the  Shawnees  had  the  right  to  select  1,600,000  acres  of  land  (a  tract 


Walker  v.  IIensiiaw.  299 

equal  to  fifty  miles  square)  on  the  Kansas  viver.  to  be  "  laid  off 
either  south  or  north  of  that  river,  and  west  of  the  lioundary  of 
Missouri." 

By  act  of  Congress  of  May  28th,  1830.  the  President  was  author- 
ized to  make  the  exchange.  (4  Stat,  at  Large,  412,  §  2) ;  and — 

§3.  "To  assure  the  tribe  or  nation    *    *    *    *    that  the  United  States 
will  forever  secure  and  gufii'antee  to  them,  their  heirs  or  successors,  the    _ 
country  so  exchanged  witli  them."  and  — 

§6.  '"J'o  cause  such  tribe  or  nation  to  be  protected,  at  tlieir  new  resi- 
dence, against  all  interruption  or  disturbance  from  any  oiho-  iribe  or  nation 
of  Indians,  or  from  any  other  person  or  persons  whatsoever." 

By  articles  of  agreement  and  convention  of  August  8th.  1831, 
the  United  States  agreed  to  grant,  by  patent  in  fee  simple.  100.000 
acres  of  land,  to  be  located  under  direction  of  the  President, 
within  the  limits  of  the  fifty  iuiles  square  reserve,  provided  for  by 
the  said  treaty  of  1825.  (7  Stat,  at  Large.  3")G.  art.  2).  and  to 
guarantee  that  said  lands — 

"Shall  never  be  within  the  bounds  of  any  State  or  territory  *  *  *  * 
and  cause  said  tribe  to  be  protected  *  *  *  +  against  all  interruption 
or  disturbance  from  any  other  tribe  or  nation  of  ImUann,  or  from  any  otlier 
person  or  persons  whatever,"  (7  Stat,  at  Large,  3o7.  art.  10.) 

[This  fifty  miles  square  reserve  was  located  so  as  to  include  the 
lands  in  question.] 

These  arrangements  and  this  treaty,  the  reader  will  observe,  were 
with  the  SJxiirnee  Indians  :  and  thus  tilings  with  that  tribe  and 
the  United  States  remained  A.  1).  1842.  On  the  17th  of  March, 
in  the  year  just  named,  a  treaty  was  concluded  between  the 
Wpanrlotte  Indians  and  the  United  States.  (11  Stat,  at  Large,  o83.) 
The  14th  article  of  it  was  thus  : 

"Tlie  United  States  agree  to  grant  by  patent  in  fee  simple,  to  each  of 
the  following  named  persons  [Irwin  Long  among  others]  and  tiieir  heirs, 
all  of  wliom  are  Wyandottes,  one  section  of  land  *  *  *  *  *  *  * 
out  of  any  lands  west  of  the  Mississippi  [afterwards  changed  by  amend- 
ment to  Missouri]  river,  se<  apart  iov  Indian  use,  «o^  already  claimed  or 
occupied  by  any  person  or  iril)e.  The  lands  hereby  granted  to  be  selected 
by  the  grantees,  *****  ij,it  jia-er  to  be  conveyed  by  tiiem,  or  their 
heirs,  witiiout  the  permission  of  the  President  of  the  United  States," 

We  now  come  back  to  the  Shcmmees.  The  1,800,000  acres  of 
land  granted  to  them  by  the  treaty  of  182.5,  subject  to  the  provis- 
ions of  the  treaty  of  August  8th.  1831,  including  the  lands  in 
question,  remained  the  property  of  the  Shawnees  until  November 
2d,  1854,  (10  Stat,  at  Large.  1053.)     A  new  treaty  was  then  ratified 


300  Walker  d.  Henshaw. 

between  thein  and  the  United  States,  by  which  the  Sliawnees 
ceded  to  the  United  States  this  1.600,000  acres,  and  tlie  United 
States  ceded  back  to  tlie  Sliawnees  200,000  tliereof.  "  to  be  selected 
between  the  Missonri  State  line  and  a  line  parallel  thereto,  and 
west  of  the  same,  thirty  miles  distant."  ifirhidiiuj  the  lauds  in, 
question. 

Out  of  these  200.000  acres,  east  of  the  thirty  mile  line,  were  to 
be  carved  certain  head  rights,  and  set  off  certain  tracts  to  be 
occupied  by  Shawnees  in  common  and  for  the  protection  of  certain 
absentees  ;  the  residue  was  to  be — 

"  Set  apart  in  one  body. of  land,  in  compact  form,  under  the  directioa 
of  the  President  of  the  United  States,  and  all  such  Shawnees  as  return 
to  and  unite  with  the  tribe  within  five  years  from  the  proclamation  of 
this  treaty  (this  g-ave  until  November  2.  1859)  shall  be  entitled  to  the 
same  quantity  of  land"  as  their  brethren,  tic.,  *  *  *  "  and  what- 
ever portion  of  said  surplus  remains  unassigned,  aftiv  i/ie  expiration  of 
said  five  years,  shall  be  sold  as  hereinafter  provided,"  <S:c.,  the  selections 
to  conform  to  the  legal  subdivisions  of  the  siu'vey  provided  for  in 
article  5. 

The  fifth  article  also — 

•'No  white  person  or  citizen  shall  be  permitted  to  make  locations  or  settle- 
ments within  the  thirty-mile  limits  until  after  all  of  the  lands  shall  have 
been  surveyed,  and  the  Shawnees  shall  have  made  their  selections  and 
locations,  and.  the  President  shall  have  set  apart  the  surplus.'''' 

On  the  22d  July,  1854,  Congress  passed  an  act  extending  the 
pre-emption  laws  over  "  all  the  lands  to  which  the  Indian  title  has 
been,  or  shall  be  extinguished '"  within  the  Territories  of  Ne- 
braska and  Kansas.     (10  Stat,  at  Large,  309.) 

We  now  pass  back  again  to  the  Wyandottes,  witli  whom  the 
treaty  had  been  made  October  5th,  1842.  By  a  new  treaty,  now 
made  jNlarch  1st.  1855.  it  was  thus  provided  in  a  tenth  article  : 

"That  each  of  the  Individuals  to  whom  reservations  were  granted  by 
the  fourteenth  article  of  the  treaty  of  March  17th,  1842,  or  their  heirs  or 
legal  representatives,  shall  be  permitted  to  select  and  locate  said  reserva- 
tions on  any  government  lands  west  of  the  States  of  Missouri  and  Iowa, 
subject  to  pre-emption  and  settlement,  said  reservations  to  be  patented  bj'^  the 
United  States  in  the  name  of  the  reservees  as  soon  at  practicable  after 
the  selections  are  made ;  and  the  reservees.  their  heirs  or  proper  repre- 
sentatives, shall  have  the  unrestricted  right  to  sell  and  convey  the  same 
whenever  they  may  think  proper." 

The  (((uds  in  question  were  first  opened  for  settlement,  pre-emp- 
tion, and  sale  on  the  Qth  day  of  July,  1858. 


Walker  v.  Henshaw.  301 

So  far  as  to  the  treaties  and  the  date  of  opening  of  tliese  lands 
to  pre-emption,  &c.     Now  as  to  the  facts  of  this  particular  case. 

The  plaintiffs  claimed  under  Irwin  Long,  the  Wyandotte  Indian 
mentioned  in  the  treaty  of  1842,  who  held  a  patent  from  the  United 
States.  In  support  of  this  title  it  appeared  that  on  the  8th  day 
of  May,  1857,  one  Stover,  a  white  man,  as  agent  for  Long,  filed 
in  the  office  of  the  surveyor  general  of  Kansas  and  Nebraska  a 
written  notice  that  as  such  agent  of  Long,  he  had  on  that  day 
selected  and  located  a  reserve  of  land  to  which  Long  was  entitled, 
m  pvrsunnce  of  the  ttco  treaties  made  by  the  United  States  vith  the 
Wyandottes  on  the  Mh  of  October.  1842.  and  the  \st  of  Marrh. 
1855.  On  this  proceeding  a  patent — this  being  the  patent  under 
which  the  plaintiffs  claimed — purporting  to  convey  the  lands  in 
pursuance  of  the  said  treaties,  was  issued  and  duly  delivered. 

The  defendants  claimed  title  by  virtue  of  a  pre-emption  settle- 
ment of  the  28th  July,  1858.  In  support  of  this  title  it  appeared 
that  in  February,  1857,  one  Whaley.  being  personally  qualified, 
entered  upon  and  made  settlement  in  person,  and  commenced  to 
improve  with  intent  to  pre-empt  and  purchase  the  land  ;  that  after 
making  such  settlement,  and  within  thirty  days  thereafter,  he 
went  to  the  proper  local  land  office  with  .intent  to  file  notice  of  his 
said  settlement  and  intention  to  pre-empt,  and  offered  to  make 
such  filing ;  but  that  the  register  of  the  land  office  refused  to 
allow  such  filing,  on  the  ground  that  the  said  land  was  not  pre- 
cmptable  ;  that  in  April  of  the  same  j'ear  he  went  to  the  same 
office  and  made  the  same  offer,  which  was  refused  by  the  register 
on  the  same  grounds  ;  that  on  the  30th  day  of  July,  1858.  he  duly 
filed  in  the  office  of  the  register  of  the  said  land  office  a  notice  of 
his  settlement  on  said  land,  and  of  his  intention  to  pre-empt  the 
same,  dating  the  time  of  his  settlement  July  28th,  1858  :  that  on 
the  5th  day  of  May.  1851).  he  purchased  the  said  land  and  paid 
for  the  same,  and  took  the  usual  certificate  of  such  purchase  and 
payment ;  that  on  the  10th  day  of  August,  1860,  the  said  pre- 
emption and  purchase  was  approved  by  the  Commissioner  of  the 
General  Land  Office  of  the  United  States,  and  the  register  of  the 
local  land  office  was  duly  notified,  by  letter  of  said  commissioner, 
of  such  approval. 

That  afterward  the  said  Whaley  applied  to  the  register  of  said 
local  land  office,  at  his  office,  for  a  patent  from  the  United  States 
to  liim  for  said  land,  and  was  informed  by  said  register  that  said 


302  Walker  v.  Hensiiaw. 

patent  luul  been  sent  iVoni  Washinirton  to  said  otflce,  and  after- 
wards recalled. 

As  already  said,  the  land  in  question  was  first  opened  for  set- 
tlement, pre-emption,  and  sale,  on  the  9th  of  July,  1858. 

The  suit  beinsf  referred  to  a  referee  to  try  the  action,  he  found 
as  matter  of  law  that  up  to  the  9th  of  July,  1858,  when,  as 
just  mentioned,  the  lands  were  first  opened  for  settlement,  pre- 
emption, and  sale,  and  indeed  up  to  May  5th.  1859.  when  Whaley 
made  his  payment  and  purchase,  neither  plaintifls  nor  defendants 
had  acquired  any  title  ;  but  that  by  the  purchase  and  payment 
then  made,  an  equital)le  title  was  vested  in  Whaley. 

He  accordingly  found  that  the  defendants  were  entitled  to 
judgment,  and  found  further  that  the  plaintiffs  should  convey  the 
title  to  the  defendants,  &c. 

This  decision  was  declared  to  be  right  by  the  Supreme  Court  of 
the  State,  and  the  case  was  now  brought  here  for  review. 

3Iessrs.  W.  T.  Otto  and  /.  P.  Usher  for  the  plaintiffs  in  error. 

Messrs.  Thacher  and  Banks  contra. 

Mil.  Justice  Davis  delivered  the  opinion  of  the  court. 

If  the  land  in  controversy  was  subject  to  the  location  of  the 
Wyandotte  float  before  it  was  proclaimed  open  to  pre-emption 
and  settlement,  the  title  of  the  plaintiffs  cannot  be  divested  by 
any  supi)osed  equity  growing  out  of  the  pre-emption  of  the  defend- 
ants. If  on  the  contrary,  neither  the  plaintiff's  grantor  nor  the 
defendants  could  take  any  steps  towards  acquiring  title  to  the 
land  until  the  9th  day  of  July.  1858,  when  it  was  first  open  to 
pre-emption  settlement,  the  defendants  having  since  that  date 
complied  with  all  the  requirements  of  the  pre-emption  law,  and 
obtained  the  usual  certificates  of  purchase,  and  grantor  of  the 
plaintiffs  having  taken  no  action  on  the  subject  after  the  8th  day 
of  May,  1857,  are  equitably  entitled  to  the  land,  and  the  legal 
title  enures  to  their  benefit. 

Whether  the  one  or  the  other  of  these  categories  be  true,  depends 
on  the  construction  to  be  given  several  Indian  treaties,  which  we 
will  proceed  to  nptice. 

By  tlie  fourteenth  article  of  the  treaty  with  the  Wyandotte  nation 
of  Indians,  ratified  on  the  5th  day  of  October,  1842  (11  Stat,  at 
Large,  583),  the  United  States  agreed  to  grant  to  each  of  several 
named  persons  (among  the  number  Irwin  Long),  Wyandottes  by 
blood  or  adoption,  a  section  of  land  out  of  any  lands  west  of  the 


Walker  v.  Henshaw.  303 

Missouri  river,  set  apart  for  Indian  use,  not  already  claimed  or 
occupied  by  any  person  or  tribe.  Tlie  privilege  of  selecting'  the 
lands  was  conceded  to  tlie  grrantees.  but  tlie  power  of  alienation 
was  denied  them,  except  with  tlie 'permission  of  the  President. 

Another  treaty  was  made  with  this  same  tribe  of  Indians  on 
the  1st  day  of  March.  1855  (10  Stats,  at  Large,  1,162),  which  con- 
ferred on  the  reservees,  under  the  treaty  of  1842.  the  right  to 
select  and  locate  their  lands  on  anj^  government  lands  west  of 
the  States  of  Missouri  and  Iowa,  subject  to  pre-emption  and  set- 
tlement, and  tlie  restriction  upon  alienation  imposed  in  the  first 
treaty  was  withdrawn,  except  as  to  certain  incompetent  jiersons. 
The  reserve  of  Long,  through  whom  the  plaintiffs  claim  title,  was 
located  upon  the  land  in  dispute,  in  May.  1857,  and  the  question 
is,  was  the  location  authorized  liy  either  of  those  treaties  ?.  It  is 
contended  that  the  lands  were  not,  at  the  time  of  the  attemi)ted 
location,  subject  to  be  taken  under  the  Long  float,  because  thej'- 
were  then  claimed  or  occupied  by  the  Shawnee  Indians,  and  this 
presents  the  most  important  subject  of  inquiry. 

It  had  been,  for  a  long  time  prior  to  the  Wyandotte  treaty  of 
1842,  the  well-defined  policy  of  Congress  to  remove  the  Indians 
from  organized  States,  and  in  execution  of  this  policy,  territory 
supposed  at  the  time  to  be  too  remote  for  white  settlement,  was 
set  apart  exclusively  for  the  use  of  Indian  tribes.  It  was  this 
policy  that  dictated  the  removal  of  the  Shawnees  from  3Iissouri 
and  Ohio,  in  1825  and  1831,  to  a  tract  of  country  in  Kansas  of 
large  area,  ceded  to  them  by  the  United  States,  and  embracing 
the  lands  in  controversy.  They  held  this  large  tract  of  land 
under  the  protection  of  treaties  and  acts  of  Congress,  from  1825 
to  1854,  when  the  rapid  decrease  in  their  numbers,  and  the  en- 
croachments of  the  white  population,  induced  the  government  to 
conclude  another  treaty  with  tliem.  essentially  lessening  their  ter- 
ritorial limits.  During  this  time  they  were,  by  express  stipulation, 
assured  of  protection,  not  only  against  interruption  or  disturbance 
from  any  other  tribe  of  Indians,  but  from  everybody  else.  In 
recognition  of  this  guarantee,  the  reservees,  under  the  Wyandotte 
treaty  of  1842.  although  in  pursuance  of  the  policy  of  the  govern- 
ment, confined  in  their  selections  to  lands  west  of  the  Missouri 
river  set  apart  for  Indian  use,  could  not  appropriate  the  lands 
already  claimed  or  occupied  by  any  person  or  tribe. 

It  is  apparent,  therefore,  that  Long  had  no  right  to  locate  his 


304  Walker  v.  Hens  haw. 

/■ 

float  on  the  laud  in  dispute,  from  1842  to  18r)4,.  because  during  all 
this  time  it  was  claimed  or  occupied  by  the  Shawuees. 

Did  the  treaty  of  1854  with  them  so  alter  the  condition  of  things 
as  to  render  valid  tlie  location  o'f  tliis  float  in  1857  ?  By  this  treaty 
the  Shawnee  nation  ceded  to  the  United  States  all  the  large 
domain  granted  to  them  by  the  treaty  of  1825,  with  tlie  exception 
of  two  Imndred  thousand  acres  reserved  as  homes  for  the  Shawnee 
people,  to  be  selected  within  certain  defined  limits,  which  included 
the  lands  in  dispute.  It  was  contemplated  that  even  this  reser- 
vation miglit  be  more  than  the  wants  of  this  people  required,  on 
account  of  the  i)aueity  of  their  nnmlters  and  the  limited  quantity 
of  land  assigned  to  each  individual  member  of  the  tribe.  Accord- 
ingly, provision  was  made  that  the  surplus  which  remained  uuas- 
signed  after  the  expiration  of  five  years,  unless  sooner  ascertained, 
should  lie  sold  by  the  government,  and  the  proceeds  appropriated 
to  the  use  of  the  Indians. 

During  this  time  the  privilege  was  conceded  to  the  Shawnees 
of  selectinii  their  lands  wherever  they  chose,  within  the  limits  of 
the  reservation.  Indeed,  until  this  privilege  was  exhausted,  the 
land,  in  any  proper  sense,  belonged  to  them. 

In  surrendering  the  larger  part  of  their  immense  possessions  to 
relieve  the  government  from  the  predicament  in  which  it  was 
placed  by  the  advancing  tide  of  white  population,  thej^  did  not 
part  with  any  right  in  the  lesser  part  reserved  by  them  as  long  as 
the  claim  of  any  single  member  of  the  tribe,  according  to  the 
terms  of  the  treaty,  was  unsatisfied.  If  one  person  could  acquire 
a  right  to  any  portion  of  the  lands  thus  reserved,  so  could  another, 
and  in  this  way  the  privilege  of  free  and  unrestricted  selection 
would  be  frittered  away. 

It  needed  no  special  provision  to  secure  this  freedom  of  choice, 
for  without  it  the  treaty  could  not  be  executed.  By  virtue  of  the 
treaty  itself  these  lands  were  appropriated  to  a  specific  purpose, 
and  whatever  interfered  with  this  accomplishment  of  the  purpose 
was  necessarily  forbidden. 

It  is  eas}'^  to  see  that  the  purpose  for  which  the  Shawnees 
retained  in  their  own  hands  the  entire  reservation  could  not  be 
effected,  if  an  entry  for  location  and  settlement  by  any  one  else 
were  permitted,  for  the  part  thus  taken  was  subject  at  any  moment 
of  time  to  be  chosen  for  the  use  and  occupation  of  the  Shawnees. 
In  effect  the  retrocession  b}'-  these  Indians  of  the  lands  granted 
to  them  in  1825,  was  on  the  condition  that  they  should  be  allowed 


*  Walker  v.  Henshaw.  305 

to  select,  within  a  limited  tims,  out  of  two  hundred  thousand 
acres  set  apart  for  this  purpose,  a  quantity  of  land  equal  to  two 
hundred  acres  for  each  individual  member  of  the  tribe.  The  per- 
formance of  this  condition  required,  until  this  time  expired,  abso- 
lute non-interference  by  any  outside  party.  On  any  otl)er  theory 
of  interpretation  these  Indians,  on  account  of  their  helpless  state, 
could  not  have  obtained  the  lands  they  desired.  If  these  views 
be  correct  the  exclusion,  in  section  five,  of  white  persons  and 
citizens  from  making  locations  or  settlements  was  not  required  by 
the  necessities  of  the  case.  They  were  excluded  without  it.  The 
clause  was  doubtless  inserted  out  of  superabundant  caution,  and 
to  satisfy  the  misgivings  of  the  Indians,  who,  from  experience, 
had  good  reason  to  dread  the  encroachments  of  this  class  of  people, 
notwithstanding  treaty  stipulations.  This  experience  had  given 
them  no  ground  to  apprehend  interference  from  the  Indians  on 
account  of  the  direct  control  exercised  by  the  government  over 
the  affairs  of  all  the  Indians  tribe. 

If,  however,  the  government  had  been  able,  without  difficulty,  to 
protect  them  against  their  own  .race,  it  had  not,  with  every  effort, 
been  always  able  to  hold  in  restraint  the  ceaseless  activity  of 
the  white  race,  It  was,  therefore,  natural  that  on  this  occasion 
the  Shawnees  should  want,  although  wholly  unnecessar3%  a  positive 
stipulation  against  the  unlawful  intrusion  upon  their  rights  by  our 
own  citizens.  Indeed,  this  very  case  aflfords  an  illustration  of  the 
quarter  from  which  trouble  has  alwaj^s  arisen,  for  Stover,  a  white 
man,  located  the  reserve,  and  it  is  a  reasonable  presumption,  in  the 
absence  of  any  proof  on  the  subject,  that  he  was  interested  in  the 
location.  It  is  enough  to  say,  without  pursuing  this  branch  of  the 
case  further,  that  we  agree  with  the  learned  Supreme  Court  of 
Kansas,  that  the  latter  clause  of  the  fifth  article  of  the  treaty 
"  conferred  no  right  or  made  no  prohibition  which  the  law  would 
not  raise  on  the  treaty"  without  it. 

If  so,  the  location  of  Long's  float,  under  the  treaty  of  1842.  was 
an  illegal  act,  because  inconsistent  with  the  existing  rights  of  the 
Shawnees.  These  rights  were  in  fall  force  at  the  time  of  the 
attempted  location,  and  remained  in  this  condition  until  the  procla- 
mation of  the  President  of  the  Dth  of  Julv,  1858,  setting  apart 
the  surplus  of  lands  which  remained  after  the  Shawnees  had 
obtained  their  full  com.plement  and  opening  the  lands  thus  segre- 
gated for  pre-emption  and  settlement. 

In  no  respect  has  the  United  States  failed  to  discharge  the  obli- 

20 


306  Walker  v.  Henshaw. 

gation  incurred  by  the  treaty  of  1842,  with  the  Wj^andotte  rcser"^ 
vees.  The  Indian  countr}-  to  which  they  were  invited  to  go  had 
been  defined  by  Congress  (see.  4  Stat,  at  Large,  739,  and  acts 
extending  the  same),  and  they  were  told  to  locate  their  reserves, 
anywliei-e  within  it.  provided  the}^  did  not  encroach  on  the  rights, 
of  others.  This  limitation  was  not  only  reasonable  in  itself,  but 
essential  to  preserve  the  faith  of  the  government  in  its  several 
treaties  with  the  diffez'ent  Indian  tribes.  Why  thirteen  years  were 
suffered  to  pass  without  these  reserves  being  located  does  not 
appear,  but  it  is  obvious  in  1855  they  had  materially  lessened  in 
value,  as  before  that  time  the  limits  of  the  Indian  country,  by 
legislation  and  treaty,  had  been  very  much  restricted.  This  re- 
striction imposed  on  the  government  the  duty  of  making  other  pro- 
visions for  these  floating  grants,  and  this  duty  was  performed  by 
the  "Wyandotte  treaty  of  1855.  This  treaty,  among  other  things, 
allowed  the  reservees  to  locate  their  floats  on  any  government 
lands  west  of  the  Missouri  and  Iowa,  subject  to  pi-e-emption  and 
settlement,  and  removed  the  restraint  upon  the  power  of  alienation, 
imposed  in  the  former  treaty.  This  action  of  the  government 
placed  Long  and  the  defendants,  as  to  the  lands  in  question,  on  pre- 
cisely the  same  grounds.  Neither  party  could  acquire  any  right 
to'  them  until  they  were  thrown  open  to  pre-emption  and  settle- 
ment, and  both,  as  soon  as  this  was  done,  were  at  liberty  to  take 
them  up  ;  Long,  by  means  of  his  float,  the  defendants  by  reason 
of  their  qualifications  as  pre-emptors  ;  and  whoever  moved  in  the 
matter  first  would  have  the  better  rights 

It  required,  however,  positive  affirmative  action  after  the  lands 
weredeclared  to  be  ptiblie  lands  before  any  title  to  them,  legal  or 
equitable,  could  be  obtained,  and  all  proceedings  attempting  to  fore- 
stall the  proclamation  of  the  President  were  null  and  void,  because 
in  contravention  of  the  treaty  with  the  Shawnees.  The  defendants, 
not  relying  on  their  prior  settlement  in  February.  1857,  to  protect 
them,  took  the  proper  steps  after  this  proclamation  to  perfect  their 
pre-emption,  and  have  performed  all  the  conditions  to  which  they 
were  subject  by  the  law.  They  have  therefore  a  complete  equi- 
table title  to  the  land,  and  as  the  patent  issued  to  Long  was  based 
on  an  unlawful  entry,  it  ought  to  be  transferred  to  the  defendants. 

There  is,  in  our  opinion,  no  error  in  the  judgment  of  the  Supreme 
Court  of  Kansas,  and  it  is  accordingly  Affirmed. 


Best  v.  Polk.  307 

Best  v.  Polk. 
October  Term,  1873.— 18  Wallace,  112. 

1.  The  treaty  of  May  24th,  1834,  with  the  Chickasaw  Indians  (7  Stat,  at 
Large,  4n0),  conferred  title  to  the  reservations  contemplated  by  it, 
which  was  complete  when  tlie  locations  were  made  to  identifN' them.i 

2-.  A  patent  (as  often  decided  before)  is  Atjid  wliich  attempts  to  convey 
lands  previouslj^  granted,  reserved  from  sale,  or  appropriated.'^ 

3.  Reservees,  under  the  treaty  above  named,  are  not  obliged,  in  addition 

to  proving  that  the  locations  were  made  by  the  proper  officers,  to 
prove  also  that  the  conditions  on  which  these  officers  were  author- 
ized to  act,  had  been  observed  by  them. 

4.  Copies  of  records  appertaining  to   the   land   office,  certified  by  the 

register  of  the  district  where  thej'  are,  are  evidence  in  ilis^issippi.3 
e.  An  officer  commissioned  to  hold  office  during  the  term  of  four  years 
from  the  2d  of  March,  1845,  is  in  office  on  the  2d  of  March,  1849. 
The  word  "from  "  excludes  the  day  of  date. 

Error  to  the  District  Court  for  the  Northern  District  of  Mis- 
sissippi, the  case  being  this  : 

By  virtue  of  a  treaty  made  Octoljer  20tb,  1832  (7  Stat,  at  Large, 
381),  the  Chickasaw  Nation  of  Indians,  in  the  belief  that  it  was 
better  to  seek  a  home  west  of  the  Mississippi,  ceded  their  lands  to 
the  United  States,  who  agreed  to  survey  and  sell  them  on  the 
same  terms  and  conditions  as  the  other  public  lands,  and  to  pay 
the  proceeds  to  the  nation.  In  order,  however,  that  the  people  of 
the  tribe  should  not  be  deprived  of  a  home  until  thej^  should 
have  secured  a  country  to  remove  to.  they  were  allowed,  after  the 
surve}^  and  before  the  first  public  sale  of  their  lands,  to  select, 
out  of  the  surveys,  a  reasonable  settlement  for  each  famil}^  and 
to  retain  these  selections  as  long  as  they  were  occupied.  After 
this  occupation  ceased,  the  selected  lands  were  to  be  sold  and  the 
proceeds  paid  to  the  nation. 

On  the  24th  of  May,  1834,  a  little  more  than  a  year  -after  the 
date  of  the  first  treat}^  another  treaty  (7  Stat,  at  Large,  450)  was 
made  with  these  Indians,  essentiallj'  changing  the  provisions  of 
the  former  one.  These  changes  were  made  owing  to  the  supposed 
inability  of  the  Chickasaws  to  obtain  a  country  within  tlie  terri- 
torial limits  of  the  United  States,  adequate  to  their  wants,  and 
to  the  desire  expressed  by  them  to  have,  within  their  own  direc- 
tion and  control,  the  means  of  taking  care  of  themselves. 
Accordingly,  they  abandoned  the  idea  of  selecting,  out  of  the 
survey's,  lands  for  temporary  occupation,  and,  in  lieu  thereof, 
Reservations  of  a  limited  quantity  were  conceded  to  them.     The 


308 


Best  v.  Polk. 


scheme  embraced  the  whole  tribe — heads  of  families,  as  well  as 
all  persons  over  twenty-one  years  of  age,  male  and  female,  who 
did  not  occupy  that  relation.  The  sixth  article  of  the  treaty 
reserved  a  section  of  land  to  each  of  this  latter  class  of  Indians, 
a  list  of  whom,  within  a  reasonable  time,  seven  chiefs  (named  in 
the  treaty)  were  to  make  out  and  file  with  the  agent.  On  this 
officer  certifying  that  the  list  was  believed  to  be  accurate,  the 
register  and  receiver  were  to  cause  the  locations  to  be  made. 

In  this  state  of  things,  the  United  States,  on  the  13th  of 
March,  1847,  reciting  that  one  James  Brown  had  paid,  '•  accord- 
ing to  the  provisions  of  two  several  treaties  with  the  Chickasaw 
Indians,  dated  October  20th,  1832,  and  May  24th,  1834,'"  &c.,  for 
the  section  23,  in  township  5,  of  range  11  west,  in  the  district  of 
lands  subject  to  sale  at  Pontotoc,  Mississippi,  containing,  «fec.,. 
"  accordino;  to  the  official  plat  of  the  survey  returned  into  the 
general  land  office  by  the  surveyor  general,  which  said  tract  has 
been  purchased  to  the  said  James  Brown,"  granted  the  section 
of  land  described  by  the  said  Brown  in  fee. 

Brown  granted  it  to  one  Polk.  Hereupon,  a  certain  Best  being 
in  possession.  Polk  sued  him  in  ejectment.  The  defendant  set 
up  that,  prior  to  the  issuing  of  the  patent  to  Brown,  the  section 
had  been  located  to  an  Indian  named  Bah-o-nah-tubby,  of  the 
Chickasaw  Nation,  under  the  terms  of  the  second  treaty,  and  that 
he  held  under  the  said  Indian. 

On  the  trial  the  defendant  offered  in  evidence  a  paper  certified 
by  one  A.  J.  Edmondson,  styling  himself  register  of  the  land 
office  of  the  United  States,  at  Pontotoc,  Mississippi,  to  be  a 
"true  copy  of  the  roll,  number,  reserves,  and  locations  under  the 
sixth  article"  of  the  treaty  between  the  United  States  and  Chick- 
asaw Indians,  &c.,  "  and  of  the  list  of  persons  furnished  by  the 
Chickasaw  agent  to  the  register  and  receiver  as  Indians  entitled 
to  land  under  said  article."     The  paper  ran  thus  : 

Reservations  Under  the  Sixth  Article  of  the  Chickasaic  Treaty. 


No. 

Resekve.                  S. 

T. 

R. 

Date. 

774 

775 
776 

'rah-pin-tali-uinby 7 

6 
5 
.5 

11  W. 

n  w. 
n  w. 

Jmie  17,  1S39. 

Chaw-caw-m  ubby 10 

Bah-o-nah-tnbby 23 

June  17,  1839. 
.June  17,  1S39. 

Best  v.  Polk.  309 

The  certificate  of  Edmondson  to  this  exhibit  was  dated  March 
^d,  1849,  while  the  commission  of  Edmondson  himself,  which 
was  produced  and  put  in  evidence  by  the  other  side,  was  dated  on 
March  2d,  also,  four  5'ears  previously  ;  and  appointed  him  register 
of  the  laud  office  at  Pontotoc,  "  during  the  term  of  four  years, 
from  the  2d  day  of  March,  1845." 

The  plaintiff  objected  to  the  paper  offered  in  evidence,  upon 
the  ground  that  it  did  not  purport  to  be  a  cop}^  of  the  record  of 
the  land  office;  that  the  certificate  was  not  autharized  by  any 
act  of  Congress ;  tiiat  it  stated  facts  and  legal  conclusions ;  that 
it  did  not  show  that  the  list  was  made  by  the  person  named  in 
the  articles  of  the  treaty,  or  that  the  agent  certified  to  its  believed 
accuracy ;  that  it  was  not  founded  on  any  order  of  survey,  dona- 
tion, pre-emption,  or  purchase ;  that  it  did  not  purport  to  be  a 
copy  of  the  plat  of  the  general  office ;  that  it  could  not  be  set 
up  to  defeat  a  patent ;  that  the  present  action  being  one  of  eject- 
ment, the  legal  title  alone  was  involved,  and  that  such  title  could 
only  pass  by  a  patent ;  that  a  patent  could  not  be  impeached  at 
law  except  for  defects  apparent  on  its  face  ;  that  the  treaties  did 
not  convey  the  title  in  fee  to  the  Indian  Bah-o-nali-tubby,  for  the 
section  of  land  sued  for,  but  that  the  title  remained  in  the  United 
States  till  it  passed  out  b}'-  patent. 

The  court  decided  that  the  paper  was  incompetent,  and  verdict 
and  judgment  having  been  rendered  for  the  plaintif!',  the  defend- 
ant brought  the  case  here,  assigning  for  error  the  exclusion  of  the 
paper. 

Mr.  T.  J.  D.  Fuller,  in  support  of  the  ruling  below : 

In   addition  to  the  reasons  taken  on  the  trial  for  the  rejection 

of  the  paper — reasons  here  iterated   and  relied  on — it  may  be 

urged  : 

1.  That  the  contemplated  reservees  were  unknown  and  uncer- 
tain persons  till  designated  and  fixed  in  a  prescribed  manner  and 
on  specific  proofs.  The  certificate  offered  in  evidence  should  have 
therefore  shown,  in  addition  to  what  it  did  show  (if  it  showed  any- 
thing), that  a  list  including  Bah-o-nah-tubby  was  furnished  by  the 
"seven  chiefs,"  in  accordance  with  the  sixth  article  of  the  treaty, 
to  the  agent,  and  that  he  certified  to  the  receiver  and  register  that 
he  believed  it  accurate. 

2.  The  paper  oifered  was  not  authenticated  in  the  manner  pre- 
scribed by  the  statute.     It  should  have  been  certified  bj^  the  Com- 


310  Best  v.  Polk. 

missioner  of  the  Land  Office,  under  the  seal  of  the  Department 
of  tlie  Interior,  accompanied  with  the  survey,  maps,  and  reserva- 
tions marked  thereon,  as  they  must  be  if  the  record  exists.  (See 
act  of  January  23d,  1823,  3  Stat,  at  Large,  721  ;  10  Id.,  297,  and 
Brightly' s  Digest,  267,  and  foot-notes.) 

3.  The  paper  was  inadmissible,  because  the  officer  certifying, 
and  at  the  time  he  certified,  was  not  in  office.  The  day  of  the 
date  of  his  commission  is  to  be  included  within  the  computation 
of  the  four  years.  His  office,  or  term  of  office,  expired  on  the  night 
of  March  1st,  1849.  And  such  is  understood  to  be  the  practice 
and  holding  of  the  government.  It  is  in  analogy  to  the  rule  of 
law  for  computing  time  under  the  Statute  of  Limitations. 

4.  The  paper,  if  competent  for  any  purpose,  could  be  so  for  one 
purpose  onlj'-,  and  that  was  to  disprove  seizin  of  the  plaintiff; 
but  the  defendant  offered  no  evidence  to  connect  himself  with 
the  alleged  outstanding  title. 

Mr.  J.  W.  C.  Watson  contra. 

Mr.  Justice  Davis  delivered  the  opinion  of  the  court. 

In  order  to  carry  out  in  good  faitli  Indian  treaties,  effect  must 
be  given  to  the  intention  of  the  parties  to  them,  and  from  the 
different  provisions  of  the  treaties  which  are  applicable  to  this 
case  no  well-founded  doubt  can  exist  of  the  proper  construction 
to  give  to  the  sixth  article.  The  cession  in  the  first  treaty  con- 
templated the  ultimate  abandonment  of  the  lands  by  the  Indians. 
This  treaty  did  not  prove  satisfactory,  and  the  Indians  asked 
and  the  United  States  conceded  to  them  a  limited  quantity  of  land 
for  a  permanent  home.  This  object  could  not  be  obtained  if  it 
were  meant  to  give  only  an  equitable  title  to  the  Indians.  Such 
a  title  would  soon  become  complicated  by  tlie  encroachments  of 
the  white  race  ;  and  that  the  Indians  supposed  they  were  provid- 
ing for  a  good  title  to  their  "'reservations"  is  manifest  enough, 
because  they  declare  in  the  second  treaty  that  they  wish  to  have 
the  management  of  their  affairs  in  their  own  hands. 

This  disposition,  which  was  natural  under  the  circumstances, 
the  United  States  yielded  to,  and  agreed,  when  the  body  of  the 
lands  were  surveyed,  to  reserve  from  sale  certain  limited  portions 
on  which  the  reservations  should  be  located.  This  was  done  in 
obedience  to  a  just  policy ;  for  it  would  have  been  wrong,  con- 
sidering the  dependent  state  of  these  Indians,  to  hold  them  to 
their  original  engagement.     The  United  States  could  not  afford 


Best  v.  Polk.  311 

to  do  this,  and  therefore  willingly  consented  to  recede  to  the 
Indians  enough  lands  for  their  wants.  Can  it  be  doubted  that 
it  was  the  intention  of  both  parties  to  the  treaty  to  clotlie  the 
r€servees  with  the  full  title  ?  If  it  were  not  so  there  would  have 
been  some  words  of  limitation  indicating  a  contrary  intention. 
Instead  of  this  there  is  nothing  to  show  that  a  further  grant  or 
any  additional  evidence  of  title  were  contemplated.  Nor  was  this 
necessary,  for  the  treaty  proceeded  on  the  theory  that  a  grant  is 
as  valid  by  a  treaty  as  by  an  act  of  Congress,  and  does  not  need 
a  patent  to  perfect  it.  We  conclude,  therefore,  that  the  treaty 
conferred  the  title  to  these  reservations,  which  was  complete  when 
the  locations  were  made  to  identify  them.  This  was  the  view 
taken  of  this  subject  by  the  highest  court  of  Mississippi,  soon 
after  this  treaty  went  into  operation,  in  litigations  which  arose 
between  the  white  race  and  the  Indians  themselves  concerning 
the  effect  to  be  given  to  these  reservations.  {Wray  x.  Doe,  10 
Smedes  &  Marshall,  461  ;  Neicniaii  v.  Doe,  4  Howard  (Mississippi), 
555 ;  Niles  et  al.  v.  Anderson  et  <d..  5  Id.,  365  ;  Coleman  v.  Doe,  4 
Smedes  &  Marshall.  46.)  In  all  these  cases  the  Indian  reservee 
was  held  to  have  preference  over  the  subsequent  patentee,  on  the 
ground  that  the  United  States  had  parted  with  the  title  by  the 
treaty.  These  decisions,  furnishing  a  rule  of  property  on  this 
subject  in  Mississippi,  were  not  brought  to  this  court  for  review, 
as  they  could  have  been,  but  have  been  acquiesced  in  for  a  quarter 
of  a  century.  To  disturb  them  now  would  unsettle  titles  bona 
fide  acquired. 

It  has  been  repeatedly  held  by  this  court  that  a  patent  is  void 
which  attempts  to  convey  lands  that  have  been  ''previously 
granted,  reserved  from  sale,  or  appropriated."  {Stoddard  v.  Cham' 
hers,  2  Howard.  284  ;  United  States  v.  Arredondo,  6  Peters,  728  ; 
Reichart  v.  Felps,  6  Wallace,  160.)  "It  would  be  a  dangerous 
doctrine"  (say  the  court  in  Neic  Orleans  v.  United  States,  10 
Peters.  731),  '-to  consider  the  issuing  of  a  grant  as  conclusive 
evidence  of  right  in  the  power  which  issued  it.  On  its  face  it  is 
conclusive,  and  cannot  be  be  contraverted ;  but  if  the  thing 
granted  was  not  in  the  grantor  no  right  passes  to  the  grantee. 
A  grant  lias  been  frequently  issued  by  the  United  States  for  land 
which  had  been  previously  granted,  and  the  second  grant  has  been 
held  to  be  inoperative." 

If,  therefore,  the  location  of  the  land  in  controversy  was  prop- 
erly made,  the  legal  title  to  it  was  consummated,  and  the  subse- 


312  Best  v.  Polk 

quent  patent  was  unauthorized.  And  this  brings  us  to  the  con- 
sideration of  the  question  whether  the  evidence  on  the  subject  of 
the  location  ought  to  have  been  received  by  the  court. 

This  evidence  consists  of  the  certificate  of  the  register  of  the 
land  office  at  Pontotoc  that  the  reserve  of  a  Chickasaw  Indian 
(naming  him)  was  located  on  the  disputed  section  in  June,  1839, 
under  the  provisions  of  the  sixth  article  of  the  Chickasaw  treaty, 
and  a  copy  of  the  roll,  number,  reserve,  and  location  is  given, 
showing  this  to  be  the  case.  It  is  insisted  that  this  certificate 
did  not°go  far  enough;  that  it  ought  to  have  shown  that  a  list 
including  this  Indian  was  furnished  by  the  seven  chiefs  to  the 
agent,  and  that  the  agent  certified  to  the  register  and  receiver 
prior  to  the  location  that  he  believed  tht  list  to  be  accurate.  If 
this  were  so  no  presumption  could  arise  that  local  land  officers 
charged  with  the  performance  of  a  duty  had  discharged  it  in  con- 
formity with  law. 

It  would  be  a  hard  rule  to  hold  that  the  reservees  under  this 
treaty,  in  case  of  contest,  were  required  to  prove  not  only  that 
the  locations  were  made  by  the  proper  officers,  but  that  the  con- 
ditions  on  which  these  officers  were  authorized  to  act  had  been 
observed  by  them.     Such  a  rule  would  impose  a  burden  upon  the 
reservees  not  contemplated  by  the  treaty,  and,  of  necessity,  leave 
their  titles  in  on  unsettled  state.     The  treaty  granted  the  land, 
but  the  location  had  to  be  fixed  before  the  grant  could  become 
operative.     After  this  was  done,  the  estate  became  vested,  and 
the  right  to  it  perfect — as  much  so  as  if  the  grant  had  been  directly 
executed  to  the  reservee.     It  has  been  frequently  held  by  this 
court  that  a  grant  raises  a  presumption  that  the  incipient  steps 
required  to  give  it  validity  have  been  taken.     {PoWs  Lessee  v. 
Wenrlell,  5  Wheaton.  293  ;    Bagnell  v.  Broderick,  13  Peters,  436.) 
The  grant,. in  this  case,  was  complete  when  the  location  was 
made,  and  the  location  is,  in  itself,  evidence  that  the  directions  of 
the  treaty  on  the  subject  we  observed,  and  it  cannot  be  presumed 
that  the  officers  empowered  to  make  the  location  violated  their 
duty.     Even  if  the  agent  neglected  to  annex  a  proper  certificate 
to  the  roll  of  Indians  entitled  to  the  reservations,  it  is  difficult  to 
see  how  the  Indians  could  be  prejudiced  by  this  neglect.     We 
conclude,  therefore,  that  the  certificate  of  the  reo^jster  was  com- 
petent evidence,  and  if  the  locations  were  not  as  there  stated,  it 
is  easy  for  the  plaintiff  below  to  show  that  fact.     The  same  effect 
was  given  to  a  similar  certificate  of  this  same  officer,  by  the  High 


J3est  v.  Polk.  313 

Court  of  Errors  and  Appeals  of  Mississippi,  as  earl}'^  as  184JS,  in 
an  action  of  ejectment  brought  bj'-  a  Chickasaw  Indian,  for  a  tract 
of  land  claimed  by  him  in  virtue  of  a  location  made  in  his  behalf 
as  a  reservee,  against  a  party  claiming  by  patent  subsequent  in 
date  to  the  location  of  his  reservation.  And  this  decision  was 
reaffirmed  by  the  same  court  in  1854,  in  the  case  of  another 
Indian  suing  for  his  land  under  similar  circumstances.  Wray  v. 
Doe,  10  Smedes  &  Marshall,  452 ;  Hardin  v.  Ho-yo-ho-uvbhifs 
Lessee,  '21  Mississippi,  587. 

It  must  have  been  supposed  at  the  time  by  the  losing  parties 
that  these  decisions  were  correct,  or  else  the  opinion  of  this  court 
would  have  been  asked  on  the  point  involved.  After  such  a 
length  of  acquiesence,  it  would  produce  great  mischief  to  hold 
this  evidence  to  be  incompetent. 

It  is  objected  that  the  paper  offered  in  evidence  should  have 
been  certified  by  the  Commissioner  of  the  General  Land  Office  ; 
but  this  was  not  necessary,  for  copies  of  records  appertaining  to 
the  land  office,  certified  by  the  register,  are  evidence  in  Missis- 
sippi, and  similar  statutes  exist  in  nearly  all  the  western  and 
southwestern  States.     (See  Revised  Code  of  Mississippi.) 

Another  objection  is  taken  to  the  certificate  of  Edmondson.  on 
the  ground  that  when  it  was  given  his  term  of  office  had  expired. 
This  objection  cannot  be  sustained,  for  the  certificate  bears  date 
the  2d  March,  1849,  and  he  was  commissioned  to  hold  the  office  of 
register  -  during  the  term  of  four  years  from  the  2d  day  of  March, 
1845."  The  word  -'from"'  always  excludes  the  day  of  date.  (See 
1  Parsons  on  Notes  and  Bills.  385,  and  the  authorities  therein 
cited.) 

It  is  argued  that  in  ejectment  a  stranger  to  the  outstanding  title 
cannot  invoke  it  to  defeat  the  action.  Whether  this  be  so  or  not 
depends  on  the  laws  of  the  State  ;  but  the  point  does  not  arise  in 
this  case,  for  there  was  no  opportunity  for  the  defendant  to  con- 
nect himself  with  the  Indian  title  after  the  court  refused  to  let  the 
evidence  on  the  subject  of  this  title  go  to  the  jury. 

The  decision  respecting  this  evidence  necessarily  disposed  of 

the  case. 

Judgment  reversed,  and  a  venire  de  novo  aicarded. 

1.  Held  the  same  under  the  Pottawatomie  treaty  of  August  29,  1821, 
Godfrey  y.  Beardslcy,  2  McLean,  412;  also  under  Chippewa  treaty  of 
September  24,  1819,  Stockton  v.  Williams,  1  Douglas  (Mich.),  546;  Dewey 


314  Best  v.  Polk. 

V.  Campau,  4  Mich.,  565  ;  also  under  Clioctaw  treaty  of  September  27, 
1830,  Land  v.  Land,  1  Smedes  &  M.  Ch.  (Miss).  158;  McAfee  v.  Keirn,  7 
Smedes  &  M.,  780 ;  and  Coleman  v.  Fish-ho-mah,  4  Smedes  &  M.,  40. 

The  supplementary  treaty  of  July  1,  1835,  with  the  Caddo  Indians, 
reciting  tliat  a  certain  quantity  of  land  had  been  granted  by  the  tribe  to 
certain  persons,  and  stipulating  that  those  persons  should  have  their  right 
to  the  said  land  reserved,  for  thcui  and  their  heirs  and  assigns  forever,  to 
be  laid  oft"  in  the  southeast  corner  of  tlie  lands  ceded,  gave  a  fee  simple 
to  the  persons  named,  and  tlieir  grantee  has  a  perfect  title.  Viiited 
States  V   Brooks,  10  Howard,  442. 

A  treaty  which  reserves  land  to  an  Indian  by  metes  and  bounds  may 
be  used  in  evidence  to  the  jury  to  prove  title  in  the  reservee.  Harris  v. 
Barneit,  4  Blackf.  (Ind.),  3(59.  But  where  the  treaty  provides  that  the 
land  shall  be  located  in  a  certain  place,  and  should  be  granted  to  the 
reservee  by  patent,  the  treaty  is  not  evidence  of  title.  Langlois  v.  Cojfin, 
1  Ind  ,  378. 

2.  Also  see  Preston  v.  Browder,  1  Wheaton,  115;  DavfortVs  Lessee  \. 
Thomas,  1  Wheaton.  155;  Burton'' s  Lessee  v.  Williams,  3  Wheaton,  529; 
Mills  V.  Stoddard,  8  Howard,  345. 

A  patent  may  be  valid  as  to  part  of  the  land,  and  void  as  to  the  part 
not  authorized  to  be  sold.  Dan  forth  v.  Wear,  9  Wheaton,  673  ;  Patterson 
V.  Jenks,  2  Peters,  216;  Witin  v.  Patterson,  9  Peters,  663  ;  Clark  v.  Smith, 
13  Peters,  195  ;  Rondellv.  Fay,  32  Cal.,  354. 

An  entry,  survey,  and  patent  for  land  in  the  Virginia  military  district, 
before  the  "Indian  title  was  extinguished,  are  all  void.  Chinn  v.  Darndt, 
4  McLean,  440. 

A  patent  issued  to  "  James  Smith,  administrator  of  Kobert  Smith,  and 
to  his  heirs,"  on  a  location  made  by  James  Smitli,  administrator  of 
Robert  Smith,  with  a  bounty  land  warrant,  is  not  void  on  its  face,  because 
it  improperly  issued  to  the  administrator  and  his  heirs.  Such  patent 
vests  the  legal  title  in  -lames  Smith,  and  his  conveyance,  without  the 
addition  of  administrator  of  Robert  Smith,  will  pass  the  legal  title  to  his 
grantee.     Bonds  v.  Hickman,  29  Cal.,  460. 

W'here  the  land  had  been  reserved  from  sale  by  the  swamp-land  grant, 
a  patent  issued  on  a  subsequent  entry  is  void  in  a  court  of  law.  Daniel 
V.  Pervis;  .50  Miss.,  261  ;  Keder  v    Bridcey.  78  111.,  133. 

3.  The  opinions  of  the  ottlcers  of  the  land  department  and  Attorney 
General,  offered  in  a  deposition,  cannot  go  to  the  jury  as  evidence  of  the 
law  of  the  case.     Roberts  v.  Cooper,  20  Ho\\ard,  467. 

For  other  points  on  evidence,  see  Hanrick  v.  Barton,  16  Wallace,  166  ; 
Hedrickv.  Jlnghes,  15  Wallace,  123. 

The  exemplifications  of  the  books  and  records  of  the  General  Land 
Office  are  admissible  on  the  general  principles  of  evidence.  Seely  v. 
Wells,  53  111..  120. 

A  certificate  of  entry  witli  an  assignment  thereon,  filed  in  the  General 
Land  Office,  becomes  a  part  of  tlie  records  of  that  oflice,  and  a  copy  of 
such  certificate,  with  the  assignment  thereon,  when  certified  to  by  the 
conuuissioner,  is  competent  evidence.     Clark  v.  Hall,  19  Mich..  350. 


Turner  v.  American  Baptist  Missionary  Union.    315 

The  seal  of  the  General  T.antl  Office  and  signature  of  the  commissioner, 
to  copies  of  papers  required  by  law  to  be  deposited  in  that  office,  prima 
facie  prove  themselves.     Harris  v.  Bariie/t,  4  Blackf.  (Ind.),  369. 

The  certified  list  of  lands  granted  to  the  State  to  aid  in  constructing 
the  Illinois  Central  Railroad,  approved  by  the  commissioner  and  Secre- 
tary of  the  Interior,  is  evidence  of  title  in  the  State.  Sawyer  v.  Cox,  G3 
111..  130. 

A  copy  of  the  list  of  approved  swamp  selections  on  file  in  the  local 
land  oflice,  certified  to  by  the  register,  is  evidence  of  the  selection  and 
approval.     Fare  v.  Williams,  35  Miss.,  533. 

C  ertified  copies  of  the  list  of  lands  selected  by  the  Wabash  and  Erie 
Canal  on  file  in  the  office  of  the  State  secretary  of  State,  are  not  evidence ; 
they  should  be  certified  from  the  original  list  on  file  in  the  General  l,and 
Office,     atauffer  v.  Sttpenson,  1  Ind.,  115. 


James  Turner  v.  The   American  Baptist  Missionary  Union. 

U.    S.  Circuit    Court,   District    of    Michigan.— June    Term,    ]S5_'. 
5  McLean,  344. 

A  State  has  no  power  over  the  public  lands  within  its  limits. 

When  the  State  of  Michigan  was  admitted  into  the  Union,  it  assented  to 
a  compact  which  inliibited  the  exercise  of  this  power. 

A  treaty  is  the  supreme  law  of  the  laud  only  when  the  treaty-ma:king 
power  can  carry  it  into  eftect. 

A  ireatj^  which  stipulates  for  the  payment  of  mone}\  undertakes  to  do 
tliat  which  the  treatj'-making  power  cannot  do,  therefore  the  treaty 
is  not  the  supreme  law  of  the  land.  To  give  it  ellect,  the  action  of 
Congress  is  necessary. 

And,  in  this  action,  the  Eepresentatives  and  Senators  act  on  their  own 
judgment  and  responsibility,  and  not  on  tlie  judgment  and  respon- 
sibility of  the  treaty-making  power. 

A  foreign  power  may  be  presumed  to  know  the  power  of  appropriating 
money  belongs  to  Congi-ess. 

No  act  of  any  part  of  the  government  can  be  held  to  be  a  law  whicli  has 
not  all  the  sanctions  to  make  it  law. 

A  reservation  of  land  for  a  specific  purpose,  withdraws  it  from 
location,  and  from  pre-emption  rights. ^ 

Where,  in  a  treaty,  100  acres  of  hind  was  reserved  to  be  sold,  in  order  to 
pay  over  the  proceeds  of  .the  sale  to  those  entitled  to  them,  is  a  with- 
drawal of  the  land  from  general  appropriation.  A  bill  is  not  mul- 
tifarious where  it  does  not  unite  titles  whicli  have  no  analogy  to  each 
other,  Avhereby  the  defendant's  litigation  and  costs  are  incn'ased. 

An  injunction  to  stay  an  ejectment  suit,  until  matters  of  equity  can  be 
examined,  will  not  be  allowed,  unless  judgment  in  the  ejectment  be 
entered. 


men  uas 
general   / 


316    Turner  r.  American  Baptist  Missionary  Union, 

3Ir.  Patterson  for  plaintiff, 

Frazer  c^-  DavUhon  for  defendants. 

Opinion  of  the  Coltrt, 

This  is  a  case  in  chancery,  which  involves  several  important 
questions  :  The  power  of  the  general  government  over  the  public 
lands,  treat^'-making  power  with  the  Indians,  the  powers  of  a 
State,  and  the  effect  of  certain  reservations  under  the  pre-emption 
law,  «fcc. 

The  complainant  states  that  in  July,  1836,  he  settled  upon  the 
land  now  claimed  by  him,  and  in  the  ensuing  spring  built  a  per- 
manent residence,  and  has  ever  since  continued  to  reside  on  the 
same.  That,  the  7th  of  July,  1838,  the  land  was  proclaimed,  by 
the  President,  for  sale,  to  take  place  loth  of  October,  1838,  On 
12th  of  October,  1838,  he  proved  his  pre-emption  claim,  and  ten- 
dered $200  for  the  entire  quarter-section.  The  entii-e  section  25, 
at  the  Falls  of  Grand  river,  in  the  State  of  Michigan,  had  been 
selected  by  the  State  of  Michigan  ;  21st  June,  1838,  lot  No.  2 
was  confirmed  to  the  State  of  Michigan.  The  9th  Feb.,  1842,  a 
law  of  Michigan  was  passed,  allowing  Sibley  to  purchase  lot  No. 
2  ;  that  he  obtained  a  certificate  of  purchase,  and  Sibley  con- 
veyed to  complainant  a  part  of  lot  No.  2,  which  was  a  part  of  the 
160  acres  mentioned  in  the  treaty^ 

This  Indian  treaty  was  held  at  Washington  city,  the  28th  of 
March,  1836,  in  the  8th  article  of  which  it  is  declared  :  "  The 
mission  establishments  upon  the  Grand  river  shall  be  appraised, 
and  the  value  paid  to  the  proper  boards."  This  was  amended 
by  the  Senate  to  read  as  follows  :  "  The  net  proceeds  of  the 
sale  oif  the  one  hundred  and  sixty  acres  of  land  upon  the  Grand 
river,  upon  which  the  missionary  society  have  erected  their  build- 
ings, shall  be  paid  to  the  said  society  in  lieu  of  the  value  of  their 
improvements." 

It  was  proved  that  the  defendants,  as  a  missionary  society,  had 
occupied  the  160  acres  for  many  years,  had  built  a  church  and 
mission  house,  and  had  made  other  improvements  on  the  tract. 
It  was  also  proved  that  the  Catholics  had  occupied  the  same  tract, 
or  a  part  of  it,  and  had  constructed  a  chapel  and  other  improve- 
ments. 

On  this  same  tract  the  complainant  had  settled  and  made  his 


Turner  v.  American  Baptist  Missionary  Union.    317 

improvements.  The  defendants  having  commenced  an  action  of 
ejectment,  to  recover  possession  of  the  land  claimed  by  them,  the 
complainant  prayed  for  an  injunction  against  the  further  prosecu- 
tion of  that  suit,  and  that  the  court  would  establish  his  title,  &c. 

On  the  part  of  complainant  it  was  contended  that,  on  the  estab- 
lishment of  the  State  government.  ^Michigan,  by  virtue  of  her 
sovereignty,  had  a  right  to  all  the  lands  within  her  limits. 

This  argument  is  not  now  advanced  for  the  first  time.  Several 
years  ago  it  was  broached  in  the  Senate,  and  in  some  of  the 
State  legislatures,  but  it  was  received  everywhere  with  less  favor 
than  its  advocates  anticipated.  It  proffered  so  rich  a  boon  to  the 
new  States,  it  was  expected  that  they  would  embrace  it  with 
enthusiasm,  and  hail  its  advocates  as  the  distinguished  friends  of 
State  rights.  The  argument  grew  less  cogent  by  the  lapse  of 
time,  as  the  public  lands  passed  into  the  hands  of  individuals  by 
purchase.  Had  it  not  been  for  this,  no  one  can  say  that  the 
policy  would  not  have  enlisted  a  powerful,  if  not  successful  party, 
in  our  political  progress. 

Looking  at  the  :natter  as  a  question  of  law,  we  have  no  hesi- 
tancy in  saying  the  argument  is  groundless.  The  State  of  Michi- 
gan can  exercise  no  power  whatever  over  the  public  lands  within 
her  limits.  She  is  expressly  prohibited  from  doing  this  by  a  com- 
pact agreed  to  in  the  admission  of  the  State  into  the  Union. 

A  treaty  under  the  federal  constitution  is  declared  to  be  the 
supreme  law  of  the  land.  This,  unquestionably,  applies  to  all 
treaties,  where  the  treaty-making  power,  without  the  aid  of  Con- 
gress, can  carry  it  into  effect.  It  is  not,  however,  and  cannot  be 
the  supreme  law  of  the  land,  where  the  concurrence  of  Congress 
is  necessary  to  give  it  effect.  Until  this  power  is  exercised,  as 
where  the  appropriation  of  money  is  required,  the  treaty  is  not 
perfect.  It  is  not  operative,  in  the  sense  of  the  constitution,  as 
money  cannot  be  appropriated  by  the  treaty-making  power. 
This  results  from  the  limitations  of  our  government.  The  action 
of  no  department  of  the  government  can  be  regarded  as  a  law 
until  it  shall  have  all  the  sanctions  required  by  the  constitution 
to  make  it  such. 

As  well  might  it  be  contended,  that  an  ordinary  act  of  Con- 
gress, without  the  signature  of  the  President,  was  a  law,  as  that 
a  treaty  which  engages  to  pay  a  sum  of  money,  is  in  itself  a  law. 

And  in  sucli  a  case,  the  representatives  of  the  people  and  the 
States,  exercise  their  own  judgments  in  granting  or  withholding 


318    Turner  v.  American  Baptist  Missionary  Union, 

the  money.  The}'  act  upon  their  own  responsibility,  and  not 
upon  the  responsibility  of  the  treaty-making  power.  It  cannot 
bind  or  control  the  legislative  action  in  this  respect,  and  every 
foreign  government  may  be  presumed  to  know,  that  so  far  as 
the  treaty  stipulates  to  pay  money,  the  legislative  sanction  is 
required. 

Without  a  law  the  President  is  not  authorized  to  sell  the  public 
lands,  so  that  this  treaty,  though  so  far  as  the  Indians  were  con- 
cerned,  was  the  supreme  law  of  the  land,  yet,  as  regards  the  right 
to  the  proceeds  of  the  above  tract,  an  act  of  Congress  is  required-. 
The  treaty,  in  fact,  appropriated  the  above  tract  of  160  acres  for 
a  particular  purpose,  but,  to  effectuate  that  purpose,  an  act  of 
Congress  was  passed. 

Under  the  act  of  23d  June,  1836,  five  entire  sections  of  laud 
were  authorized  to  be  selected  and  located  under  the  direction  of 
the  legislature  of  Michigan,  in  legal  divisions  of  not  less  than 
one  quarter-section,  from  any  of  the  unappropriated  lands  belong, 
ing  to  the  United  States  within  the  State,  were  granted  to  the 
State  for  the  purpose  of  completing  the  public  buildings  bf  the 
said  State,  &c.  By  virtue  of  this  law,  under  the  direction  of  the 
legislature  of  the  State,  the  tract  of  1 60  acres  in  controversy  was 
in  part,  located.      This  location  is  objected  to  on  two  grounds^ 

1.  The  land  located  amounted  to  less  than  a  quarter-section, 
and  the  above  act  did  not  authorize  the  entry  of  less  than  a 
quarter. 

2.  That  under  the  treaty  the  land  had  been  previously  appro- 
priated. 

Both  of  these  grounds  are  fatal  to  the  right  of  the  State.  Under 
the  law,  the  State  was  bound  to  conform  to  its  provision,  and  a 
less  quantity  than  160  acres  could  not  be  located.  The  other 
ground  is  clear.  The  part  of  the  land  entered  had  been  specially 
appropriated  by  the  treaty.  The  land  itself  was  not  appropriated, 
but  its  proceeds,  which  necessarily  require  a  sale  of  the  land, 
in  the  usual  mode  of  selling  public  lands,  by  the  government,  at 
public  auction,  in  order  that  the  proceeds  of  the  sale  miglit  be 
paid  over  to  the  proper  persons.  It  was  not,  therefore,  open  to 
location  by  the  agent  of  the  State.  The  words  of  the  act  are  suflS- 
cient  to  show  this  : 

"Any  unappropriated  land  belonging  to  the  United  States, 
could  be  taken,  to  satisfy  the  donation  to  the  State.  But  in  so 
far  as  the  location  interfered  with  the  mission  land,  it  was  spe^ 


Turner  v.  AxMerican  Baptist  Missionary  Union.    319 

cially  appropriated  to  be  sold  that  the  proceeds  might  be  paid  to 
the  persons  ei^titlcd  to  them." 

The  same  objection  applies  to  the  pre-emption  claim  by  the 
act  of  1838,  which  continues  the  act  of  1830.  That  act  declares 
that  its  provisions  should  not  apply  to  lands  which  had  been 
reserved  or  otherwise  approi)riated- 

It  is  contended  that  a  treaty  with  Indian  tribes,  has  not  the 
same  dignity  or  effect,  as  a  treaty  with  a  foreign  and  independent 
nation.  This  distinction  is  not  authorized  by  the  constitution. 
Since  the  commencement  of  the  government,  treaties  have  been 
made  with  the  Indians,  and  the  ti-eaty-making  power  has  been 
exercised  in  making  them.  Thej^  are  treaties,  within  the  mean- 
ing of  the  constitution,  and,  as  such,  are  the  supreme  laws  of.  the 
land. 

The  objection  that  the  bill  is  multifarious,  arises  on  the  demur- 
rer. But  we  think  it  is  not  sustainable.  The  decisions  On  this 
subject  are  contradictory  and  unsatisfactory.  The  common  sense 
rule  in  such  cases  is,  that  an  individual  shall  not  be  called  to 
maintain  his  title,  or  shall  not  assert  it,  in  connection  with  others, 
to  which  it  has  no  analogy,  and  in  the  investigation  of  which,  the 
Cost  and  the  complexity  of  the  case  will  be  increased. 

It  is  a  rule  of  this  court,  in  practice,  not  to  allow  an  injunction 
to  stay  a  proceeding  at  law,  until  the  matter  in  equity  shall  be 
investigated.  In  such  cases  the  court  require  a  judgment  to  be 
entered  in  the  ejectment,  as  a  condition  to  the  allowance  of  an 
injunction.  If  this  be  not  done,  though  the  decision  in  chancery 
be  favorable  to  the  legal  right,  to  gain  the  possession  of  the  prem- 
ises, a  prosecution  of  the  action  at  law  may  be  necessary.  To 
avoid  delay  in  this  respect,  the  rule  has  been  observed. 

The   court    overrule    the   demurrer,    and   enter    a    ride   for 

ansvcer. 

* 

1.  General  laws  for  the  disposition  of  the  piiblic  land  do  not  embrace 
land  directed  to  be  sold  in  a  special  manner.  UnUed  Stales  v.  Gear,  3 
How.^  120. 


320  Parker  v.  Duff. 

Alviikus  II.  Pakkku  and  E.  O.  F.  Hastings  v.  Green  Duff, 
Amos  IIensiiaw  and  Luke  Robinson. 

Supreme  Court  of  California.— .January  Term,  1874.— 47  California,  554. 

Potcer  of  Registers  and  Receieers  of  Pvblic  Lands. — The  registers  and 
receivers  of  the  United  States  land  otHces,  in  permitting  entries  of 
public  lands  to  be  made,  must  look  only  to  acts  of  Congress,  and  to 
such  regulations  of  the  General  Land  Office  as  have  been  made  in 
pursuance  of  law.  They  have  no  powei-s  except  such  as  are  derived 
from  these  som-ces. 

Power  of  Head  of  Land  Deparimcvi.— The  head  of  the  land  department  of 
the  United  States  has  no  authority  to  direct  or  permit  entries  of  land 
to  be  made  in  the  local  ofiices  unless  in  cases  authoi-ized  by  some  act 
of  Congress. 

Control  of  Land  Department  by  Treaty-making  Pow<r.—'V\\e  treaty-making 
power  cannot  confer  upon  the  land  department  any  authority  nor 
enjoin  upon  it  any  duty  in  respect  to  the  sale,  conveyance,  or  dis- 
posal of  the  public  lands  of  the  United  States,  except  with  the  con- 
sent of  Congress. 1 

Selection  of  Public  Lands  and  Patents  Therefor  nvderihe  Treaty-maliing  Power. 
— If  a  treaty  is  made  with  a  tribe  of  Indians,  by  which  they  relinquish 
to  the  United  States  their  lands  with  certain  reservations,  and  the 
treaty  provides  that  the  heads  of  families  in  the  tribe  shall  each  be 
entitled  to  eighty  acres  of  land  to  be  selected  under  the  direction  of 
the  President,  and  to  be  secured  by  patents,  the  officers  of  the  land 
department  cannot  issue  scrip  for  land  selected  under  the  treaty  out- 
side of  the  ceded  territory,  nor  can  the  President  issue  patents  there- 
for in  the  absence  of  legislation  by  Congress  authorizing  it  to  be 
done. 

Treaty  loilli  the  Chippewas. — The  treaty  with  the  Chippewas  of  Lake 
Superior  and  the  Mississippi,  dated  September  30,  18.54,  giving  to 
each  head  of  a  family  of  the  mixed  bloods  of  the  tribe  eighty  acres 
of  land,  tp  be  selected  by  the  President  and  patented,  does  not 
permit  the  selection  of  lands  for  such  mixed  bloods  on  the  public 
domain  outside  of  tlie  territory  ceded  to  the  United  States  by  the 
Indians  in  the  treaty. 

Chippewa  Scrip  and  Patetits  Thereon.— Scrip  issued  for  such  lands  selected 
outside  the  ceded  territory  is  issued  without  authority  of  law,  and 
patents  issued  therefor  which  show  for  what  they  were  issued,  are 
void  on  their  face. 

Appeal  from  the  District  Court,  Third  Judicial  District,  County 
of  Santa  Clara. 

Ejectment  to  recover  lots  one  and  two  of  section  1.5,  T.  7  south, 
E.  1  west.  Mount  Diablo  meridian.  The  complaint  was  in  the 
usual   form.     The  answer,  after  deiijing  the   allegations  of  the 


Parker  v.  Duff.  321 

complaint,  set  up  b}'  way  of  cross-eomplaiiit.  and  for  the  purpose 
of  obtaining  affirmative  relief,  the  following  facts  : 

That  in  January,  1864.  one  H.  II.  Warburton  was  in  possession 
of  the  demanded  premises,  and  remained  in  possession  until 
December  24, 1868,  when  he  sold  the  same  for  $2,900  to  defendant, 
Luke  Robinson,  and  delivered  possession  to  Robinson,  and  that 
Robinson  was  a  qualified  pre-emptor,  and  the  land  was  public  land 
subject  to  pre-emption,  and  Robinson  settled  on  it  with  the  inten- 
tion of  pre-empting. 

That  the  plat  of  the  survey  of  the  township  was  filed  in  the 
local  land  office  November  7th,  1866.  but  was  suspended  by  an 
order  of  the  surveyor  general  of  the  United  States  until  the  tenth 
day  of  October,  1868,  when  it  was  restored,  and  that  defendant 
Robinson,  on  the  seventh  day  of  Januarv,  1869,  filed  his  declara- 
tory statement  of  pre-emption. 

That  November  4th.  1864.  there  was  issued  to  P^rancoise  Bru- 
nette by  W.  P.  Dole.  Commissioner  of  Indian  Affairs,  under  and 
by  virtue  of  the  treaty  of  September  30th,  1854,  between  the 
United  States  and  the  Chippewas  of  Lake  Superior  (vol.  10,  U.  S. 
Statutes  at  Large,  pages  1 109  and  following),  a  certificate,  of  which 
the  following  is  a  copy  : 

"Examined,     No.  166,  C. 

"  Department  of  the  Interior, 
''Office  of  Indian  Affairs,  November  4,  1864. 

"I  hereby  certify  that   Francoise  Brunette,  of  ,  in  the 

State  of  Minnesota,  is  one  of  the  persons  described  in  the  pro- 
visions contained  in  the  treaty  of  September  30,  1854,  with  the 
Chippewas  of  Lake  Superior,  and  that  the  said  Francoise  Bru- 
nette is  entitled  to  eighty  acres  of  land  as  therein  provided. 

"  It  is  hereby  expressl}^  declared  that  any  sale,  transfer,  mort' 
gage,  assignment  or  pledge  of  this  certificate,  or  of  any  right 
accruing  under  it,  will  not  be  recognized  as  valid  by  the  United 
States,  and  that  the  patent  for  lands  located  by  virtue  thereof 
shall  be  issued  directly  to  the  above-named  reservee,  or  his  or  her 
heirs,  and  shall  in  nowise  enure  to  the  benefit  of  any  other  person 
or  persons  ;  and  the  objects  and  purpose  of  this  certificate  is  to 
identify  the  said  above-named  Francoise  Brunette  as  one  of  the 
persons  entitled  to  the  benefit  of  the  provisions  of  the  seventh 
clause  of  the  second  article  of  the  treaty  aforesaid. 

21 


322  Parker  v.  Duff. 

"  Given  under  my  hand  and  the  seal  of  the  Department  of  the? 
Interior  this  da\^  and  year  above  written. 

"W.  F.  Dole,  Commissioner." 

That  on  the  20th  day  of  November,  1864,  said  Brunette  made 
and  appointed  one  L,  L.  Robinson  his  attorney  in  fact,  with  full 
power  to  locate  the  land  mentioned  in  said  certificate  in  any  land 
office  of  the  United  States.  That  said  Brunette,  on  the  29th  day 
of  jSTovember,  1864,  sold  to  one  John  Y.  Fraser  the  said  certifi- 
cate and  the  land  mentioned  therein,  and  gave  no  deed,  but  instead 
thereof  gave  to  Fraser  a  paper  purporting  to  be  a  power  of  attor- 
ney, authorizing  said  Fraser  to  sell  and  convej'  the  land  to  be 
selected  and  patented  bj^  virtue  of  the  certificate.  That  Novem- 
ber 12,  1868,  Robinson,  as  said  attorney  in  fact  of  Brunette,  and 
in  the  name  of  Brunette,  made  in  the  United  States  land  office 
at  San  Francisco  with  said  certificate  a  location  of  the  demanded 
premises,  but  that  the  location  was  made  at  the  request  of  and 
for  the  benefit  of  the  plaintiffs,  and  Brunette  knew  nothing  of  the 
same,  and  never  saw  the  land.  That  the  register  and  receiver 
certified  the  location,  and.  forwarded  to  Washington  the  certificate, 
with  their  endorsement  that  the  same  was  located  thereon,  and 
the  other  documents  referred  to,  and  that  the  Commissioner  of 
the  General  Land  Office  at  Washington  prepared  a  patent,  and 
the  President  on  the  10th  day  May,  1869,  signed  it. 

That  Fraser,  on  the  loth  day  of  July.  1869,  pretending  to  act 
under  the  power  of  attorney  from  Brunette,  conveyed  the  land  to 
the  plaintiffs.  The  cross-complaint  further  averred  that  the  other 
defendants  were  the  tenants  of  the  defendant  Robinson.  There 
was  a  prayer  that  the  plaintiffs  be  compelled  to  convey  to  the 
defendant  Robinson  whatever  title  they  had,  and  for  general  relief. 
The  court  below  sustained  a  demurrer  to  this  cross-complaint. 

The  following  is  the  patent  mentioned  above  : 
'•Examined.     The  United  States  of  America.     Certificate  No, 

166,  C. 
"To  all  to  loliom  these  •presents  shall  come,  greeting: 

"  Whereas,  by  the  7th  clause  of  the  second  article  of  the  treaty 
with  the  Chippewas  of  Lake  Superior  and  the  Mississippi,  dated 
30th  September,  1854,  it  is  provided  that  each  head  of  a  family 
or  single  person  over  twenty-one  years  of  age,  at  the  present  time, 
of  the  mixed  bloods  belonging  to  the  Chippewas  of  Lake  Superior, 
shall  be  entitled  to  eighty  acres  of  land,  to  be  selected  by  them 


Parker  v.  Duff.  323 

under  the  direction  of  the  President ;  and  whereas  there  has  been 
deposited  in  the  General  Land  Office  of  the  United  States  a  cer- 
tificate of  the  register  of  the  land  office  at  San  Francisco,  No.  139, 
whereby  it  appears  that  Chippewa  certificate  No.  166,  C,  in  the 
name  of  Francoise  Brunette  for  eighty  acres,  issued  by  the  Com- 
missioner of  Indian  Affairs  under  the  aforesaid  treaty,  has  been 
located  and  surrendered  by  the  said  Francoise  Brunette  in  full 
satisfaction  for  the  lots  numbered  one  and  two  of  section  fifteen, 
in  township  seven  south,  of  range  one  west,  Mount  Diablo 
meridian,  in  the  district  of  lands  subject  to  sale  at  San  Francisco, 
California,  containing  sixty  acres  according  to  the  official  plat  of 
the  public  lands  returned  to  the  General  Land  Office  by  the  sur- 
veyor general,  which  said  tract  has  been  located  by  the  said 
Francoise  Brunette. 

"Now,  know  ye  that  the  United  States  of  America,  in  con- 
sideration of  the  premises,  have  given  and  granted,  and  by  these 
presents  do  give  and  grant  unto  the  said  Francoise  Brunette,  and 
to  his  heirs,  the  said  tract  above  described,  to  have  and  to  hold 
the  same,  together  with  all  the  rights,  privileges,  immunities  and 
appurtenances  of  whatsoever  nature  thereunto  belonging,  unto  the 
said  Francoise  Brunette,  and  to  his  heirs  and  assigns  forever. 

"In  testimony  whereof,  I,  Ulysses  S.  Grant,  President  of  the 
United  States  of  America,  have  caused  these  letters  to  be  made 
patent  and  the  seal  of  the  General  Land  Office  to  be  hereunto 
affixed. 

"  Given  under  my  hand  at  the  city  of  Washington  the  tenth 
day  of  May,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  sixtj'-nine,  and  of  the  Independence  of  the  United  States  the 
ninety-third. 

"  By  the  President : 

[Seal  of  General  Land  Office.]  "  U.  S.  Grant." 

On  the  trial  the  plaintiffs  offered  the  patent  in  evidence.  The 
defendant  objected  because  the  patent  was  void  upon  its  face  for 
want  of  authority  in  the  officers  issuing  it ;  and  that  it  appeared 
upon  its  face  that  it  purported  to  convey  a  portion  of  the  public 
domain  of  the  United  States,  and  that  without  the  authority  of  an 
act  of  Congress  of  the  United  States,  and  therefore  ^ras  void. 

The  court  overruled  the  objections  and  admitted  the  patent  in 
evidence. 

The  plaintiff  recovered  judgment,  and  the  defendant  appealed 


324  Parker  p.  Duff. 

from  the  judgment  and  from  the  order  sustaining  the  demurrer 
to  the  cross-complaint. 

Moore  ^-  Laine  und  S.  F.  Leih  for  the  appellants,  argued,  that 
the  patent  was  void  on  its  face,  because  issued  without  authority 
oflaw,  and  cited  Patterson  v.  Winn,  11  Wheat.,  380  ;  Stoddard  v. 
Chambers,  2  Howard,  U,  S.,  284;  and  Minter  v.  CrommeUn, 
18  Howard,  U.  S.,  88  ;  U.  S.  Stat,  at  Large,  vol.  10,  p.  1109. 
They  also  argued,  that  there  was  no  authority  for  the  acts  of  the 
land  officers,  and  for  the  issuance  of  tlie  patent,  except  the  treaty,. 
and  that  by  a  proper  construction  of  the  treaty  no  land  could 
be  selected  outside  the  ceded  temtory. 

They  argued  further,  that  the  constitution  of  the  United  States,, 
(art.  4,  and  sec.  3),  conferred  on  Congress  the  power  to  make  rule* 
and  regulations  concerning  the  public  domain,  and  that  a  treaty 
disposing  of  the  public  lands  was  in  violation  of  the  constitution, 
and  cited  Story  on  the  Constitution,  vol.  3,  §  1322.  Wilcox  v. 
Jackson,  13  Pet.,  516  ^  United  States  v.  Fitzgerald,  15  Pet.,  421  ; 
Easton  v.  Salisbury,  21  How,  ,U  .S^  431  ;  and  Frisbie  v,  Whitney,. 
9  Wallace,  192.    . 

George  A.  Nourse  for  respondents  argued,  that  the  power  vested 
by  the  constitution  in  Congress  to  make  rules  and  regulations  in 
relation  to  the  public  domain  was  not  exclusive,  but  might  be 
exercised  by  the  treaty-making  power,  as  the  power  conferred  on 
Congress  and  the  clause  making  treaties  the  supreme  law  of  the 
laud,  were  concurrent  grants,  and  that  where  a  collision  tookplace^ 
the  action  of  the  treaty-making  power,  or  of  Congress,,  must  give  way 
according  as  one  or  the  other  first  took  action  in  the  matter,  and 
cited  Wilson  v.  Blackbird,  Creek  Marsh,  2  Pet.,  245  ;  the  License 
Leases,  5  How.,  U.  S.,  504 ;  Huston  v.  Moore,  5  Wheat.,  1,  and 
No.  32,  of  the  Federalist.  That,  as  in  this  case,  the  treaty -making 
power  had  first  alienated  the  land,  the  title  had  passed,  and  cited 
iTaylor  v.  Carlyle,  20  How.,  U.  S.,  583,  and  Pratt  v,  Northavi,  5* 
Mason,  95. 

Moidtrie  Sf  Lovell  also  for  respondents. 

The  patent  is  not  void  because  the  President  selected  the  land 
in  controversy,  outside  of  the  ceded  or  Indian  territory. 

(Land  Laws,  Regulations,  and  Decisions,  by  Lester,  vol.  2,  pp. 
371-373  ;  Land  Laws  of  the  U.  S.,  by  Zabriskie,  pp.  308-311.) 

The  head  of  the  land  department  of  the  general  government, 
has  finally  determined  that  it  could  select  the  lands  outside  the 


Parker  v.  Duff.  325 

•ceded  territory,  and  this  court  will  not  disturb  the  ruling,  which 
for  obvious  reasons,  ought  to  have  the  force  of  law  in  such  matters. 
i{Uniua  SfAttes  v.^The  Bank  of  the  Metropolis.  15  Pet.,  491.) 

"  It  is  no  objection  to  the  right  of  the  first  grantee,  that  the  land 
-finally  patented  did  not  lie  within  the  district  ceded  by  the  treaty 
which  made  the  reservation,  because  the  recitals  in  the  patent  are 
conclusive  ;  at  any  rate,  third  parties  have  no  right  to  impeach 
the  patent  for  such  a  reason."  {Creics  v.  Burchum,  1  Black,  U. 
S.,  352.) 

By  the  court.  Crockett.  J. : 

Though  there  are  two  records  in  these  cases,  brought  up  on 
separate  appeals,  they  constitute  in  fact  but  one  case  ;  one  of  the 
appeals  being  from  the  judgment,  and  the  other  from  the  order 
sustaining  the  demurrer  to  and  dismissing  the  cross-complaint. 

It  is  unnecessary  to  decide  whether  this  was  an  appealable 
-order,  and  we  shall  treat  the  transcript  filed  on  the  last  appeal  as 
only  an  amendment  of  the  transcript  on  the  first  appeal. 

The  most  important  question  to  be  considered,  and  which  we 
think  is  decisive  of  the  case,  is  whether  the  patent  to  Brunette, 
under  which  the  plaintitf  claims,  is  void  on  its  face. 

The  patent  recites,  that  by  the  second  article  of  the  treaty  with 
the  Chippewas  of  Lake  Superior  and  the  Mississippi,  dated  30th 
September,  1854.  it  is  provided  that  -'each  head  of  a  family  or 
single  person  over  twenty-one  years  of  age,  at  the  present  time, 
of  the  mixed  bloods  belonging  to  the  Chippewas  of  Lake  Superior, 
shall  be  entitled  to  eighty  acres  of  land,  to  be  selected  by  them 
under  the  direction  of  the  President."  and  that  there  had  been 
deposited  in  the  General  Land  Office,  a  certificate  of  the  register 
of  the  land  office  at  San  Francisco,  whereby  it  appears  that  Chip- 
pewa certificate  No.  166,  C.  in  the  name  of  Francoise  Brunette  for 
eighty  acres,  issued  by  the  Commissioner  of  Indian  Affaii-s,  under 
the  aforesaid  treaty,  has  been  located  and  surrendered  by  Brunette 
in  full  satisfaction  for  lots  1  and  2.  (describing  the  premises  in 
controversy  in  this  action),  which  tract  had  been  located  by  Bru- 
nette, and  thereupon  the  patent  proceeds  to  grant  the  land  to  him 
in  the  usual  form.  The  patent  is  signed  by  the  President,  and  is 
in  due  form.  The  treaty  (10  Statutes  at  Large,  p.  llOi)).  after 
providing  as  quoted  in  the  patent,  also  adds  that  the  lands  to  be 
selected  by  the  mixed  bloods  unler  the  dirsction  of  the  President, 
"shall  be  secured  to  them  by  patent  in  the  usual  form." 


326  Parker  r.  Buff. 

There  appears  to  have  been  no  act  of  Congress  authorizing  the 
scrip  issued  to  these  mixed  blood  Indians  to  be  located  on  the 
public  lands  of  the  United  States ;  and  the  argument  for  the 
defendants  is,  first,  that  under  the  third  section  of  the  fourth 
article  of  the  constitution  of  the  United  States,  Congress  has  the 
sole  power  "  to  dispose  of  and  make  all  needful  rules  and  regula- 
tions respecting  the  territory  and  other  property  belonging  to  the 
United  States,"  and  it  is  claimed  that,  under  the  treaty-making 
power,  the  President  and  Senate  had  no  authority  to  dispose  of 
these  lands  without  the  consent  of  Congress. 

Second,  that  if  it  be  conceded  that  it  is  competent  for  the 
treaty-making  power,  under  any  circumstances,  without  the  con- 
sent of  Congress,  to  cede  a  portion  of  the  public  domain,  never- 
theless, if  the  treaty  provides  that  a  patent,  in  the  usual  form, 
shall  issue  for  the  ceded  lauds,  the  officers  of  the  land  department 
have  no  power  to  permit  entries  of  the  lands  to  be  made  in  the 
local  land  offices,  nor  has  the  President  authority  to  issue  patents 
therefor  unless  empowered  to  do  so  bj^  some  act  of  Congress. 

Under  the  views  which  we  entertain  in  respect  to  the  last  propo- 
sition, .it  will  be  unnecessary  to  consider  or  determine  the  first. 

In  the  exercise  of  its  exclusive  power  under  the  constitution, 
Congress  has  established  a  land  department  for  the  management 
and  sale  of  the  public  lands.  This  department  is  under  the 
immediate  supervision  of  the  Commissioner  of  the  General  Land 
Office,  subject  to  the  supervisory  control  of  the  Secretary  of  the 
Interior ;  and  the  subordinate  duties  are  performed  by  surveyors, 
registers,  and  receivers,  in  the  several  districts. 

The  duties  of  all  these  officers  are  prescribed  by  law,  or  by  regu- 
lations having  the  force  of  law  ;  and  in  permitting  entries  to  be 
made  in  tlieir  respective  offices,  the  register  and  receiver  must 
look  only  to  the  act  of  Congress,  and  to  such  regulations  of  the 
general  land  office  as  have  been  made  in  pursuance  of  law.  They 
have  no  powers  except  such  as  are  derived  from  these  sources  ; 
nor  has  the  head  of  that  department  the  authority  to  direct  or 
permit  entries  to  be  made  in  the  local  offices,  unless  in  cases 
authorized  by  some  act  of  Congress.  They  are  the  mere  creatures 
of  statutory  law,  from  which  all  their  powers  are  derived. 

The  treaty-making  power  cannot  confer  upon  the  land  depart- 
ment any  authority,  nor  eiajoin  upon  it  any  duty  in  respect  to  the 
sale,  conveyance,  or  disposal  of  the  public  lands  of  the  United 
States,  except  with  the  consent  of  Congress,  which  is  the  source 


Parker  c.  Duff.  327 

of  all  its  powers.     An  entry  iu  the  local  land  office  is  void  unless 
authorized  hy  some  act  of  Congress,  and  the  President  has  no 
authoritj^  to  issue  patents,  except  in  the  cases  provided  by  law. 
In  Stoddard  v.  Chambers  (2  How.,   318).  it  was  decided  that  a 
location  "made  on  lands  not  liiil)le  to  be  thus   appropriute<l,  but 
expressly  reserved,"  and  a  patent  issued  in  accordance  with  the 
location,  were  void.     In  East  on  v.   SalisJmry,  21    How.,  431,  the 
court  says  :     "  The  President  of  the  United  States  has  no  authority 
to  issue  patents  for  land,  the  sale  of  which  is  not  authorized  by 
law."     In  United  States  v.  Stone,  2  Wall.,  535,   it  was  held  that 
patents  are   void  where  the  officer  has  no  authority  in  law  to 
issue   them."     In    Patterson   v.    Winn,    11   Wheat.,    388,  it  was 
announced  as  the  settled  doctrine  of  the  court,  "  that,  if  a  patent 
is  absolutely  void  on  its  face,  or  the  issuing  thereof  was  without 
authority,  or  prohibited  by  statute,   or  the  State  had  no  title,  it 
may  be  impeached  collaterally  in  a  court  of  law,  in  an  action  of 
ejectment."     The  same  proposition  is  maintained  in  Poll's  Lessee 
V.  Wendell,  9  Cranch,  99  ;  5  Wheat.,  303  ;  Ladiyo   v.   Roland,  2 
Howard,    588;  Reiehart  v.   Felps.    6  Wall.,   160,  and  numerous 
other  cases.     But  the  plaintiff  contends,  inasmuch  as  the  constitu- 
tion declares  a  treaty  to  be  the  supreme  law  of  the  land,  first, 
that  if  the  treaty,   as  in  this  case,  provides  that  patents   shall 
issue,  this  provision  is  as  obligatory  as  any  other.     Second,  that 
the  acts  of  Congress  establishing  and  regulating  the  land  depart- 
ments, prescribe  the  methods  in  which,  and  the  officers  by  whom, 
patents  are  to  be  issued,,  and  that  no  further  legislation  was 
necessary  to  carry  the  treaty  into  eflect.     In  Foster  v.  Neilson,  2 
Pet.,  314,  Chief  Justice  Marshall,  in  delivering  the  opinion  of  the 
court,  said  :     "  Our  constitution  declares  a  treaty  to  be  the  law  of 
the  land.     It  is  consequently  to  be  regarded,  in  courts  of  justice, 
as  equivalent  to  an  act  of  the  legislature,  whenever  it  operates, 
of  itself,  without  the  aid  of  any  legislative  provision.     But  when 
the  terms  of  the  stipulation  import  a  contract,  wlien  either  of  the 
parties  engages  to  perform  a  particular  act,  the  treaty   addresses 
itself  to  the  political   and  not  the  judicial  department,   and  the 
legislature  must  execute  the  contract  belor^  it  can  become  a  rule 
of  the  court."     In  that  case,  the  language  of  the  treaty  was.  that 
"  all  the  grants  of  land  made  before  the  24th  of  January,   1818, 
by  his  Catholic  ]N!«jesty,  etc.,  shall  be  ratified  and  confirmed  to 
the  persons  in  possession,  to  the  same  extent  that  the  same  grants 


328  Parker  v.  Duff. 

would  be  valid  if  the  territories  had  remained  under  the  dominion 
of  his  Catholic  Majesty." 

The  court  held  the  treaty  to  create  only  a  contract  that  the 
grants  should  be  ratified  and  confirmed  in  futuro ;  and  that  until 
the  legislative  department,  either  directl3^  or  through  its  agents 
appointed  for  that  purpose,  had  ratified  the  grants,  they  had  no 
standing  in  the  courts. 

In  Turner  v.  The  American  Baptist  Mission  Union,  b  McLean, 
344,  it  was  provided  by  a  treaty  with  a  tribe  of  Indians  that, 
"the  net  proceeds  of  the  sale  of  the  one  hundred  and  sixty 
acres  of  land  upon  the  Grand  river,  upon  which  the  missionary 
society  have  erected  their  buildings,  shall  be  paid  to  the  said 
society  in  lieu  of  the  value  of  their  improvements."  In  discuss- 
ing the  question  whether  the  treaty  was  self-executing,  the  court 
said  :  "  A  treaty  under  the  federal  constitution  is  declared  to  be 
the  supreme  law  of  the  land.  This,  unquestionably,  applies  to  all 
treaties  when  the  treaty-making  power,  without  the  aid  of  Con- 
gress, can  carry  it  into  effect.  It  is  not,  however,  and  cannot  be, 
the  supreme  law  of  the  land,  when  the  concurrence  of  Congress 
is  necessary  to  give  it  effect,  until  this  power  is  exercised,  as 
where  the  appropriation  of  money  is  required,  the  treaty  is  not 
perfect.  *  *  *  AVithout  a  law,  the  President  is  not  author- 
ized to  sell  the  public  lands,  so  that  this  treaty,  though  so  far  as 
the  Indians  were  concerned,  was  the  supreme  law  of  the  land, 
yet,  as  regards  the  riglit  to  the  proceeds  of  the  above  tract,  an 
act  of  Congress  is  required.  The  treaty,  in  fact,  appropriated  the 
above  tract  of  one  hundred  and  sixty  acres  for  a  particular  pur- 
pose, but  to  effectuate  that  purpose,  an  act  of  Congress  was 
passed. 

Tested  by  these  rules  we  think  it  is  clear  that  the  officers  of  the 
land  department,  in  the  absence  of  any  legislation  by  Congress 
authorizing  it  to  be  done,  had  no  authority  to  issue  the  Chippewa 
scrip,  nor  to  permit  entries  to  be  made  under  it ;  and.  conse- 
quentl}'.  that  the  patent  was  issued  without  authority  of  law. 

The  language  of  the  treaty  is,  that  the  lands  to  be  selected  by 
mixed  bloods,  undeij  the  direction  of  the  President,  "  shall  be 
secured  to  them  by  patent  in  the  usual  form."  This  imports  a 
contract  that  the  government  would  thereafter  cause  the  patents 
to  be  issued  ;  and  in  principle,  is  not  to  be  distinguished  in  this 
respect  from  the  treaty  considered  in  Foster  v.  Wilson  supra,  in 
which  it  was  stipulated  that  certain  grants  "shall  be  ratified  and 


Parker  v.  Duff.  329 

confirmed."  In  both  cases  the  acts  were  to  be  performed  in  futnro, 
and  in  neither  could  there  be  a  performance  without  the  aid  of 
the  legislative  department.  So  in  Turner  v.  The  American  Bap- 
tist Mission  Union  supra,  it  was  held  that  a  stipulation  in  the 
treat}^  for  the  sale  of  certain  lands  and  the  application  of  the  pro- 
ceeds could  not  be  carried  into  effect  without  an  act  of  Congress. 
In  the  case  of  StocMon  v.  Williums,  1  Uoug.,  546,  the  Supreme 
Court  of  Michigan,  considered  the  question  now  under  discussion. 
The  facts  were  that  by  a  treaty  with  the  Chippewas  there  was 
reserved  out  of  the  ceded  lands  a  tract  of  640  acres  for  the  use  of 
a  half-breed  woman  named  Mokitchenoqua,  "  to  be  located  at  and 
near  the  general  traverse  of  the  Flint  river,  in  such  manner  as  the 
President  of  the  United  States  may  direct."  The  land  depart- 
ment subsequently  directed  the  register  and  receiver  of  the  proper 
district  to  take  proofs  as  to  the  identity  of  the  person  entitled  to 
the  reservation,  and  on  ascertaining  the  fact,  to  issue  to  such 
person  a  proper  certificate.  A  half-breed  woman  named  Eliza- 
beth Lyons,  claimed  that  her  Indian  name  was  Mokitchenoqua, 
and  that  she  was  the  reservee  named  in  the  treat}',  made  the 
proofs  before  the  register  and  receiver,  and  secured  the  certificate. 
Several  years  later,  another  half-breed  woman,  named  Nancy 
Crane,  applied  to  the  register  and  receiver  for  a  certificate,  claim- 
ing that  her  Indian  name  was  Mokitchenoqua,  and  that  she  was 
the  person  for  whom  the  reservation  was  made.  On  hearing  the 
proofs,  the  register  and  receiver  awarded  the  certificate  to  her ; 
on  which  a  patent  was  afterwards  issued  to  her  by  the  President. 
The  Plaintitfs  claimed  under  this  title,  and  the  defendants  under 
the  title  of  Elizabeth  Lyons.  The  plaintiffs  contended  that  the 
patent  was  conclusive  of  the  rights  of  the  parties :  whilst  the 
defendants  claimed  that  the  patent  was  void,  because  it  was 
issued  without  authority  of  law.  In  considering  this  point,  the 
court  said  :  "  But  it  may  be  said  that  the  title  is  in  the  grantee 
of  Mokitchenoqua,  to  whom  the  patent  issued.  But  this  presup- 
poses a  power  on  the  pai*t  of  the  President  to  issue  a  patent  for 
the  land  in  question.  Did  this  power  exist  ?  If  it  did  its  exis- 
tence must  be  shown,  for  it  will  be  hardly  contended  that  under 
our  form  of  government  and  system  of  laws  respecting  the  public 
domain,  it  is  competent  for  the  President  to  issue  a  patent  with- 
out the  authority  of  law.  The  authority  to  issue  patents  is  not 
inherent  in  the  President,  but  belongs  to  Congress,  who  have  the 
sole  power  to  determine  by  whom  and  to  whom,  and  upon  what 


330  Parker  c.  Duff. 

conditions  they  shall  be  issued,  and  to  declare  their  dignity  and 
effect.  The  third  article  of  the  treaty  of  Saginaw  does  not  pro- 
vide that  a  patent  sliall  issne,  and  no  act  of  Congress  has  been 
produced  authorizing  tlie  President  to  issue  patents  to  the  several 
reservees  named  in  that  article.  We  are  bound,  therefore,  to  sup- 
pose that  the  patent  issued  without  any  authorit}^  derived  either 
from  the  treaty  or  any  act  of  Congress  designed  to  carr3^  into  effect 
its  provisions,  and  is,  therefore,  nugatory  and  void. 

The  court,  it  will  be  observed,  lays  some  stress  upon  the  fact 
that  the  treaty  contains  no  provision  authorizing  a  patent  to 
issue.  But  whatever  weight  this  may  be  entitled  to,  in  respect 
to  lands  reserved  within  the  ceded  territory',  the  title  to  which 
did  not  pass  to  the  United  States  under  the  treaty,  it  is  entitled  to 
none,  in  respect  to  other  lands  not  included  within  the  ceded  terri- 
tory, and  which  appear  on  the  face  of  the  patent  not  to  have  been 
so  included.  In  respect  to  this  latter  class  of  lands,  the  Presi- 
dent has  no  authority  to  issue  patents,  except  such  as  is  derived 
from  some  act  of  Congress. 

No  treaty  can  divest  the  legislative  department  of  the  "  sole 
power  to  determine  by  whom,  and  to  whom,  and  upon  what  con- 
ditions" patents  shall  issue,  for  portions  of  the  public  domain. 

Whatever  control  the  treaty-making  power  may  exercise  over 
lands  reserved  under  a  treaty  of  cession  to  the  United  States,  it 
is  clear  that  it  cannot  divest  Congress  of  its  exclusive  power  to 
determine  in  what  cases  patents  shall  issue  for  public  lands  not 
included  in  the  ceded  territory. 

Thus  far  we  have  proceeded  on  the  assumption  that  it  was  con- 
templated by  the  seventh  subdivision  of  the  second  article  of  the 
treaty  with  the  Chippewas,  that  each  of  the  mixed  bloods  therein 
specified,  should  be  entitled  to  eighty  acres  of  land,  to  be  selected  by 
him,  under  the  direction  of  the  President,  from  any  portion  of  the 
public  domain  of  the  United  States,  whether  within  or  without  the 
ceded  territory.  But  we  think  this  is  not  the  proper  interperta- 
tion  of  the  treaty.  By  the  second  article  there  was  set  apart  and 
withheld  from  sale  six  large  bodies  of  land,  for  the  use  severally 
of  six  different  bands  of  that  tribe.  Immediately  following  these 
reservations  is  the  provision  for  the  mixed  bloods,  by  which  each 
is  to  be  entitled  "  to  eiglity  acres  of  land  to  be  selected  by  them, 
under  the  direction  of  the  President,  and  which  shall  be  secured 
to  them  by  patent  in  the  usual  form."  The  third  article,  after 
providing  for  a  survey  of  the  reservations,  authorizes  the  President 


Parker  v.  Duff.  331 

to  "assi^^  to  each  head  of  a  family,  or  single  person  over  twenty- 
one  years  of  age,  eighty  acres  of  land  for  his  or  their  separate  use, 
and  he  may,  at  his  descretion.  as  fast  as  the  occupants  become 
capable  of  transacting  their  own  affairs,  issue  patents  therefor  to 
such  occupants,  with  such  restrictions  of  the  power  of  alienation 
as  he  may  see  fit  to  impose."  The  provisions  of  the  third  article 
manifestly  apply  only  to  lands  within  the  reservation,  and  there  is 
nothing  to  justify  the  inference  that  the  lands  to  be  secured  to  the 
mixed  bloods,  were  not  to  stand  upon  the  same  footing,  with  the 
single  exception,  that  on  account,  probably,  of  their  greater  Intel- 
ligence  and  of  their  supposed  capacity  to  manage  their  own  affairs, 
the  land  selected  by  them  were  to  be  immediately  patented,  and 
without  any  restriction  as  to  the  power  of  alienation.  But  there 
is  nothing,  we  think,  to  warrant  the  conclusion,  that  they  were 
authorized  to  select  lands  outside  of  the  reservations  and  the  ceded 
territory.  AVe  are,  therefore,  of  opinion  that  the  scrip  on  which 
the  patent  is  founded,  was  issued  without  authority  of  law,  and 
that  the  patent  is  void  on  its  face. 

This  view  of  the  case  renders  it  unnecessary  to  decide  the  other 
questions  discussed  by  counsel. 

Judgment  and  order  reversed,  and  cause  remanded  for  a  new 
trial. 


Note.— In  the  case  of  The  Cherokee  Tobacco  (11  Wall.,  621),  the  court 
used  the  following  language  :  "  A  treaty  may  supersede  a  prior  act  of 
Congress  (Foster  8f  Elam  v.  Neilson.  2  I'et.,  314),  and  an  act  of  Congress 
may  supersede  a  prior  treaty  {Taylor  v,  Morton^  2  Curtis,  454;  The 
Clinton  B'idge,  1  Walworth.  155.") 

1 .  In  the  case  of  Ilnhkn  v.  Joi/,  1 7  Wall.,  24(5,  the  court  say  :  ^'  Objection 
is  made  by  the  appellant  that  the  treaty  was  inoperative  to  convey  the 
neutral  lands  to  the  Cherokee  nation,  which  may  well  be  admitted,  as 
none  of  its  provisions  purport  jnapiic  viyvre,  to  make  anj^  such  convey- 
ance. Nothing  of  the  kind  is  pretended,  but  the  stipulation  of  the  second 
article  of  the  treaty  is  that  the  United  States  covenant  and  agree  to  con- 
vey to  the  said  Indians  and  their  descendaiUs,  by  patent  in  fee  simple,  the 
described  additional  tract,  meaning  the  tmct  known  as  the  neutral  lands; 
and  the  third  article  of  the  treaty  stipulates  that  the  lands  ceded  by  the 
treaty,  as  well  as  those  ceded  by  a  prior  treaty,  shall  all  be  included  in 
one  patent,  to  be  executed  .to  the  C  herokee  nation  of  Indians  by  the 
J'resident,  according  to  the  provisions  of  the  befure-mentioned  act  of 
Congi'ess.  Gaines  v.  JS'ichotson,  9  How.,  356;  Insurance  Cvnipamj  v. 
Canter,  1  Pet.,  542. 

''Suppose  that  is  so,  still  it  is  insisted  tliat  the  President  and  Senate, 


♦^32  Larriviere  v.  Madeoan. 

in  concluding  such  a  treaty,  could  not  lawfully  covenant  that  a  patent 
should  issue  to  convey  lands  which  belonged  to  the  United  states,  without 
the  consent  of  Congress,  which  cannot  be  admitted.  United  States  v. 
Brooks,  10  How.,  442  ;  Meigs  v.  McCliiin/,'.)  Cranch,  11. 

"On  the  contrary,  there  are  many  authorities  where  it  is  held  that  a 
treaty  may  convey  to  a  grantee  a  good  title  to  such  lands  without  an  act 
of  Congress  conferring  it,  and  that  Congress  has  no  constitutional  power 
to  settle  or  interfere  with  rights  under  treaties,  except  in  cases  purely 
political.  Wilson  v.  Wall,  6  Wall.,  89;  Imsurauce  Co.  v.  Cuntt)\  1  I'et., 
5-12  ;  D(,e  v.  Wilson,  23  How.,  461 ;  Mitchell  et  al.  v.  United  States.  9  Pet., 
749 ;  United  States  v.  Brooks  et  al,  10  How.,  4(10 ;  The  Kansas  Indians,  5 
Wall.,  737;  2  Story  on  the  Constitution.  §  1.508;  Foster  et  al,  v.  Neilson. 
2  Pet  ,  254  ;  Crews  et  al.  v.  Burcham,  1  Black.,  356  ;  Worcester  v.  Georgia, 
6  Pet.,  562;  Blair  v.  Pathkiller,  2  Yerger,  407;  Harris  v.  Barnett,  4  Black- 
ford, 3(i9. 

".Much  reason  exists  in  view  of  those  authorities  and  others  which 
might  be  referred  to,  for  holding  that  the  objection  of  the  appellant  is 
not  well  founded,  but  it  is  not  necessary  to  decide  the  question  in  this 
case,  as  the  treaty  in  qnestion  has  been  fully  carried  into  effect,  and  its 
provisions  have  been  repeatedly  recognized  by  Congress  as  valid.  Insur^ 
ance  Co.  v.  Canter,  1  Pet.,  511 ;  Lawrence's  Wheaton,  48." 


Larriviere  v.  Madegan. 

U.  S.  Circuit  Court,  District  of  Minnesota,  1870.— 1  Dillon,  455, 

Public  Lands. — Ejectment. — Equitable  Title. 

1.  The  location  of  land  with  scrip,  under  and  in  compliance  with  the  act 

of  Congress  of  .July  17,.  1854,  passed  the  fee  out  of  the  United  States 
and  was  equivalent  to  a  patent. 

2.  In  ejectment,  the  defendant  cannot,  in  the  courts  of  the  United  States, 

set  up  an  equitable  title. 

Before  Nelson,  J. : 

The  facts  necessary  to  understand  the  questions  of  law  decided, 
appear  fully  in  the  opinion  of  the  court. 
W.  W.  Phelps  for  the  plaintiff. 
S.  L.  Camphell  for  the  defendant. 

Nelson,  District  Judge  : 

This  is  an  action  of  ejectment.  The  property  involved  is  the 
northeast  quarter  of  the  southeast  quarter  of  section  nine  (9), 
township  one  hundred  and  ten  (110),  west  of  rano;e  ten  (10),  con- 
taining forty  acres  of  land,  according  to  the  government  survey. 


Larriviere  v.  Madegan,  333 

gituated  in  what  is  known  as  the  "Half-breed  Tract,"  iu  the  State 
of  Minnesota. 

The  title  is  claimed  ])vtlie  i)laintiflr  by  virtue  of  a  scrip  location, 
under  the  act  of  Congress  of  July  17,  1854,  and  by  the  defendant, 
by  virtue  of  a  pre-emption  entry  conferred  under  the  act  of  Con- 
gress of  May  19,  18o8,  which  is  amendator}'  of  the  preceding:  act. 
A  special  verdict  was  taken.  It  appears  from  this  verdict  that 
the  plaintiff  was  a  half-breed  Sioux,  and  a  beneficiary  under  the 
treaty  of  Prairie  du  Chien  made  in  July,  1830. 

The  9th  article  of  this  treaty  reads  as  follows  :  "The  Sioux 
bands  in  council  having  earnestly  solicited  that  they  might  have 
permission  to  bestow  upon  the  half-breeds  of  their  nation  the  tract 
of  land  within  the  following  limits,  to  wit : 

"Beginning  at  a  place  called  the  Varn,  below  and  near  the 
village  of  the  Red  Wing  Chief,  and  running  back  fifteen  miles  ; 
thence  in  a  parallel  line  with  Lake  Pepin  and  the  Mississippi, 
about  thirty -two  miles  to  a  point  opposite  Beef  or  0-Beuf  river ; 
thence  fifteen  miles  to  the  grand  encampment  opposite  the  river 
aforesaid.  The  United  States  agree  to  suffer  said  half-breeds  to 
occupy  said  tract  of  country,  they  holding  by  the  same  title  and  in 
the  same  manner  that  other  Indian  titles  are  held."  (7  Stats,  at 
Large,  330.) 

In  July,  1834,  Congress  passed  an  act  authorizing  the  President 
to  exchange  with  half-breeds,  beneficiaries  of  the  forgoing  treaty, 
for  the  tract  of  land  described  above,  giving  each  of  said  half- 
breeds  certificates  or  scrip  for  the  same  amount  of  land  each 
would  be  entitled  to  in  case  a  division  of  the  reservation,  pro  rata, 
among  the  claimants,  upon  a  full  and  complete  relinquishment  to 
the  United  States  of  all  their  right,  title,  and  interest  to  the  said 
tract  of  land.  "Which  said  certificates  or  scrip"  (in  the  language 
of  the  act)  "may  be  located  upon  any  of  the  lands  within  said 
reservation  not  now  occupied  by  actual  and  bona  Jide  settlers  of 
the  half-breed  or  mixed  bloods,  or  such  other  persons  as  have 
gone  into  said  territory'  by  authority  Of  law.  or  upon  any  other 
unoccupied  lands  subject  to  pre-emption  or  private  sale,  or  upon 
any  other  uusurveyed  lands,  not  reserved  by  government,  upon 
which  they  have  respectively  made  improvements  ;  provided,"  &c. 
In  accordance  with  the  provisions  of  this  act  of  Congress,  the 
plaintiff,  on  the  27th  of  March,  1857,  executed  a  relinquishment 
of  his  risht,  title,  and  interest  in  and  to  the  said  reservation,  and 
received  his  certificate  or  scrip,  and  on  the  11th  day  of  August, 


334  Larriviere  v.  Madegan. 

1857,  at  the  Fairbault  land  office,  located  scrip  No.  87,  B,  for  forty 
acres,  upon  the  property  in  dis])ute.  fully  complying  with  the 
instructions  of  the  General  Land  Office. 

On  the  19th  day  of  May,  1858,  Congress  passed  an  act  amend- 
atory of  the  act  of  July  17,  1854,  as  follows:  "The  act  of  July 
17,  1854.  is  herel\y  amended  so  that  the  body  of  land  known  as 
the  Half-breed  Tract,  lying  on  the  west  side  of  Lake  Fepin  and 
the  Mississippi  river,  in  the  territory  of  Minnesota,  and  which  is 
authorized  to  be  surveyed  by  the  said  act  of  1854,  shall  be  subject 
to  the  operation  of  the  laws  regulating  the  sale  and  disposition  of 
the  public  lands  ;  and  settlements  heretofore  made  thereon  are 
declared  valid,  so  far  as  they  do  not  conflict  with  settlement  made 
by  half-bi'eeds  ;  and  that  the  sfettlers  shull  have  the  benefit  of  the 
pre-emption  laws  of  the  United  States,  any  location  of  half-breed 
scrip  thereon  after  date  of  the  settlement  notwithstanding ;  pro- 
vided," &c.     (11  Stats,  at  Large,  2'J2.) 

The  defendants  settled  upon  the  land  located  by  the  plaintiff 
on  the  8th  day  of  October,  1855,  and  under  the  act  of  May  19, 

1858,  effected  a  pre-emption  entry  on  the  2d  day  of  June,  1859,  of 
the  southeast  quarter  of  section  nine  (9),' township  one  hundred 
and  ten  (110),  range  ten  (10),  west,  which  embraced  the  forty-acre 
tract  aforesaid,  and  now  claims  a  supei'ior  title  to  the  plaintiff. 

The  principles  involved  in  this  case  are  not  new.  They  have 
frequently  engaged  the  attention  of  courts,  and  have  been  fully 
decided.  The  location  of  the  land  with  the  scrip,  under  the  act  of 
Congress  of  July  17,  1854,  passed  the  fee  out  of  the  United  States, 
and  vested  it  in  the  plaintiff  as  grantee.  The  scrip  and  applica- 
tion became  the  "instruments  of  title,"  and  confei'red  upon  him 
the  legal  title  as  effectually  as  could  have  been  done  by  the  issuing 
of  a  patent. 

The  defendant  sets  up  an  equitable  title  only,  to  wit :  a  certifi- 
cate of  a  pre-emption  entry.  In  action  at  law,  the  legal  title  must 
prevail,  and  the  equities  of  the  parties  cannot  be  inquired  into. 
The  location  with  the  scrip,  being,  in  my  opinion,  equivalent  to 
a  patent,  gives  a  better  title  than  the  pre-emption  entry.  (See  13 
Peters.  516;  20  Howard,  566;  11  lb.,  568;  Vd  lb.,  24;  2  Johns., 
84,  222.) 

These  authorities  settle  this  case,  as  no  equitable  title  can  be 
set  up  in  ejectment  in  opposition  to  the  legal  estate. 

Judgment  upon  the  special  verdict  is,  therefore,  given  for  the 
plaintiff.  Jvdgment  accordingly. 


Rice  v.  Railroad  Company.  335 

Note. — This  scrip  cannot  be  located  on  land  Avitliin  an  Indian  reserva- 
tion, and  a  patent  issued  on  such  location  is  void  in  a  court  of  law. 
Sharon  v.  Woohirick,  18  Minn.,  '6-)4. 

Neither  can  it  be  located  on  occupied  public  land  without  the  consent 
of  the  occupant,  but  may  be  with  his  consent.  Thompson  v.  Mtjrick,  20 
Minn.,  20-5. 

The  decisions  of  the  land  officers  in  disputes  in  locating  land  with  this 
scrip  will  not  be  re-exuuiiued  b}-  the  courts.     Munette  v.  CruU,  7  Minn.,  2^54. 


Edmund  Eice,  plaintiff  in  error,  v.  The  Minnesota  and  Nohth- 
AVE.sTERN  Railroad  Company. 

December  Term,  ISGl.— 1  Black,  3G0  ;  4  Miller,  502. 

Construction  of  Congressional  Railroad  Grant. 

1 .  An  act  of  the  territorial  legislature  incorporating  a  railroad  company 

and  granting  it  lands  AAhich  Congress  might  thereafter  grant  to  the 
territory  to  aid  in  building  such  a  road,  is  not  a  binding  and  valid  grant 
as  against  the  State. 

2.  A  grant  of  lands  to  a  State  or  territory,  for  the  purpose  of  building  a 

railroad,  whicii  contains  a  provision  "that  no  title  shall  vest  in  said 
territory,  nor  shall  any  patent  issue  for  any  part  of  the  lands  hereto- 
fore mentioned,  until  a  continuous  length  of  twenty  miles  of  said 
road  shall  be  completed  through  the  lands  hereby  granted,"  is  not 
a  grant  in  presenti.  and  no  title  passes  until  the  terms  are  complied 
with. 

3.  It  is  competent  for  Congress  to  repeal  such  an  act  absolutely  before 

any  road  is  built  under  it,  and  Avith  the  repeal  falls  all  claims  of  the 
territory  or  any  under  her  to  the  lands. 

Writ  of  error  to  the  District  Court  for  the  District  of  Minnesota. 
The  case  is  fully  stated  it  the  opinion. 

Mr.  Noyes  arid  Mr.  Barbour  for  plaintiffs. 
Mr.  Stevens  for  defendants. 

Mr.  Justice  Clifford  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  District  Court  of  the  United  States 
for  the  District  of  Minnesota,  bringing  up  the  record  of  a  suittrans- 
ferred  into  that  court  from  the  Supreme  Court  of  the  Territory. 

According  to  the  transcript,  tlie  suit  was  commenced  by  tlie 
present  plaintiff  on  the  first  day  of  November,  1856,  in  the  district 
court  for  the  county  of  Dakota,  before  the  territory  was  admitted 
as  a  State.      It  was  an  action  of  trespass ;  and  the  complaint 


336  Rick  v.  Railroad  Company. 

contained  two  counts,  each  describing  a  distinct  tract  of  land  ag 
the  close  of  the  plaintiff.  Both  tracts,  however,  as  described, 
comprised  a  certain  part  of  township  number  one  hundred  and 
fourteen  north,  of  range  nineteen  west,  situate  in  the  county  where 
the  suit  was  brought ;  and  the  several  acts  of  trespass  complained 
of  were  alleged,  in  each  count,  to  have  been  committed  on  the 
twenty-fifth  day  of  October,  prior  to  the  date  of  the  writ. 

Service  was  duly  made  upon  the  corporation  defendants,  and 
they  appeared,  and  made  answer  to  the  suit.  Whenever  the 
answer  to  the  suit  extended  beyond  tlie  mere  denial  of  the  alle- 
gations of  the  complaint,  the  law  of  the  territory  required  that  it 
should  contain  "a  statement  of  the  new  matter  constituting  the 
defence  or  counter-claim  ;'"  and  the  defendants  framed  their  answer, 
in  this  case,  in  conformity  to  that  requirement. 

Among  other  things,  they  admitted,  in  the  answer,  that  the 
plaintiff  claimed  title  to  the  premises  under  the  United  vStates,  by 
purchase  and  entry,  made  on  the  first  day  of  January.  1856  :  but 
averred  that  they  were  incorporated  by  the  territorial  legislature 
on  the  fourth  day  of  March,  1854,  and  set  up  a  prior  title  in  them- 
selves, under  the  provisions  of  their  charter,  and  an  act  of  Congress 
passed  on  the  twenty-ninth  day  of  June,  in  the  same  year. 

Responding  to  that  claim,  the  plaintiff  replied,  that  the  act  of 
Congress  referred  to  in  the  answer  was  repealed  on  the  fourth  day 
of  August,  of  the  same  year  in  which  it  was  passed. 

To  that  replication  the  defendants  demurred,  showing  for  cause, 
that  the  act  of  Congress  last  named  was  void,  and  of  no  effect. 

Judgment  was  entered  for  the  plaintiff  in  the  county  court ;  and 
thereupon  the  defendants  appealed  to  the  supreme  court  of  the 
territory,  where  the  judgment  of  the  county  court  was  reversed  ; 
but  no  final  judgment  in  the  cause  was  ever  entered  in  that  court. 
Pursuant  to  the  act  of  Congress  admitting  the  territory  as  a 
State,  (11  Stat,  at  Large,  285),  the  record  of  the  suit  was  then  trans- 
ferred to  the  District  Court  of  the  United  States  created  by  that 
act ;  and  the  latter  court,  on  the  nineteenth  day  of  November, 
1858,  after  supplying  an  omission  in  the  record  of  the  county 
court,  entered  a  final  judgment  in  favor  of  the  defendants.  Where- 
upon the  plaintiff  sued  out  a  writ  of  error,  and  removed  the  case 
into  this  court. 

Possession  of  the  premises  having  been  in  the  plaintiff  at  the 
time  the  supposed  trespasses  were  committed,  and  the  several  acts 
of  trespass  complained  of  being  admitted,  the  controversy  must 


Rice  v.  Railroad  Company.  337 

turn  upon  the  sufficiency  of  the  title  set  up  by  the  defendants. 
They  were  incorporated  by  the  territorial  legislature  on  tlie  fourth 
day  of  March,  1854,  as  alle_2;ed  in  the  answer.  Their  charter  em- 
powerd  them,  among  other  things,  to  survey,  locate,  and  construct 
a  railroad  from  the  line  of  the  State  of  Iowa  to  Lake  Superior. 
Authority  was  also  given  to  the  company,  in  the  charter,  to 
secure,  in  the  manner  therein  pointed  out,  a  right  of  way  for  the 
contemplated  railroad,  two  hundred  feet  in  width,  through  the 
entire  length  of  the  described  route. 

For  that  purpose  they  might  purchase  the  land  of  the  owners, 
or  might  enter  and  take  possession  of  the  same  upon  paying  proper 
compensation.  And  the  charter  also  contained  the  following  pro- 
vision :  All  such  lands  *  *  *  and  privileges  belonging,  or 
which  may  hereafter  belong,  to  the  territory  or  future  State  of 
Minnesota,  on  and  within  said  two  hundred  feet  in  width,  are 
hereby  granted  to  said  corporation  for  said  purposes,  and  for  no 
other  ;  and  for  the  purpose  of  aiding  the  said  company  in  the  con- 
sti'uction  and  maintaining  the  said  railroad,  it  is  further  enacted, 
that  an}-  lands  that  may  be  granted  to  the  said  territory,  to  aid  in 
the  construction  of  the  said  railroad,  shall  be,  and  the  same  are 
hereby,  granted  in  fee  simple,  absolute,  without  any  further  act 
or  deed.  Provision  was  also  made  for  such  further  deed  or  assur- 
ance of  the  transfer  of  the  said  property  as  said  company  might 
require,  to  vest  in  them  a  perfect  title  to  the  same  ;  and  to  that 
end,  the  governor  of  the  territory  or  future  State  was  authorized 
and  directed,  "  after  the  said  grant  of  land  shall  have  been  made  " 
to  the  territor}'^  by  the  United  States,  to  execute  and  deliver  to 
said  company  such  further  deed  or  assurance,  in  the  name  and  in 
behalf  of  said  territory  or  State,  but  upon  such  terms  and  conditions 
as  may  be  prescribed  b}'^  the  act  of  Congress  granting  the  same. 

These  references  to  the  act  of  incorporation  will  be  sufficient, 
in  this  connection,  except  to  say,  that  the  corporators  named  in 
the  first  section  held  a  meeting  within  the  time  specified  in  the 
act,  and  voted  to  accept  the  charter,  and  gave  notice  of  such 
acceptance,  as  therein  required.  They  also  chose  a  committee, 
to  call  future  meetings  for  the  organization  of  the  company,  and 
authorized  the  committee  to  open  books  and  receive  subscriptions 
for  one  million  dollars  of  the  capital  stock. 

Books  of  subscription  were  accordingly  opened,  under  their 
direction,  on  the  first  day  of  May,  1854,  and  on  the  twentieth  day 
of  the  same  month  subscriptions  were  made  to  the  araouut  of  two 

22 


338  Rice  v.  Railroad  Company. 

hundred  dollars,  of  which  an  installment  of  teu  per  cent,  was  duly- 
paid  by  the  subscribers.  Con2:ress,  on  the  twenty-ninth  day  of 
June,  1854,  passed  the  act  entitled,  "  An  act  to  aid  the  Territory 
of  Minnesota  in  the  construction  of  a  railroad  therein,"  which  is 
the  act  of  Congress  referred  to  in  the  answer  of  the  defendants. 
(10  Stat,  at  Large,  p.  302.) 

Assuming  the  allegations  of  the  answer  to  be  correct,  subscrip- 
tions to  the  capitol  stock  of  the  company  were  made  on  the  fol- 
lowing day  to  the  amount  of  one  million  of  dollars,  and  an  install- 
ment of  ten  per  cent,  upon  each  share  so  subscribed  was  duly 
paid  to  the  committee.  Having  complied  with  the  conditions  of 
the  charter  in  these  particulars,  the  subscribers  to  the  stock,  in 
pursuance  of  previous  notice  given  by  the  committee,  met  in  the 
city  of  New  York,  on  the  first  day  of  July  in  the  same  year,  and 
completed  the  organization  of  the  company,  by  the  election  of 
twelve  directors,  and  such  other  officers  as  were  necessary  under 
their  charter  to  effect  that  object. 

Reference  will  now  be  made  to  the  act  of  Congress  set  up  in 
the  replication  of  the  plaintiff',  in  order  that  the  precise  state  of 
facts,  as  they  existed  on  the  fourth  day  of  August,  1854,  when 
the  repealing  act  was  passed,  may  clearly  appear. 

By  that  act  it  was  in  effect  provided,  that  the  bill  entitled  "An 
act  to  aid  the  Territory  of  Minnesota  in  the  construction  of  a  rail- 
road," passed  on  the  twenty -ninth  day  of  June,  1854,  be,  and  the 
same  is  hereby  repealed.  (10  Stat,  at  Large,  575.)  Repealed  as 
the  act  was  at  the  same  session  in  which  it  was  passed,  the  defend- 
ants had  not  then  procured  the  amendments  to  their  charter  set 
up  in  the  answer,  nor  had  they  then  commenced  to  survey,  locate, 
or  construct  the  railroad  therein  authorized  and  described.  They 
had  completed  the  organization  of  the  company  under  their  orig- 
inal charter,  at  the  time  and  in  the  manner  already  mentioned ; 
but  they  had  done  nothing  more  which  could  have  the  remotest 
tendency  to  secure  to  them  any  right,  title,  or  interest  in  the 
lands  described  in  the  complaint.  One  of  the  amendments  to 
their  charter,  set  up  in  the  answer,  was  passed  by  the  territorial 
legislature  on  the  seventeenth  day  of  February,  1855,  and  the 
other  on  the  first  day  of  March,  1856 — more  than  a  year  and  a 
half  after  the  act  of  Congress  in  question  had  been  repealed. 
Survey  of  the  route  and  location  of  the  railroad  were  made  on  the 
twentieth  day  of  October.  1855  ;  and  the  defendants  admitted 
that  the  location  included  the  parcels  of  land  in  controversy,  and 


KiCE  0.  Railroad  Company.  339 

that  they  went  upon  the  same  at  the  time  alleged,  and  cut  down 
and  removed  the  trees  fi-om  the  track  of  the  railroad,  as  alleged 
in  the  complaint. 

Most  of  the  facts  here  stated  are  drawn  from  the  answer  of  the 
defendants ;  but,  inasmuch  as  the  pleadings  resulted  in  demurrer, 
and  the  replication  did  not  controvert,  the  allegations  of  the 
answer,  it  must  be  assumed  that  the  facts  stated  in  the  answer 
are  correct. 

Looking  at  the  statement  of  the  case,  it  is  quite  obvious  that 
two  questions  are  presented  for  decision  of  very  considerable 
importance  to  the  parties  ;  but  in  our  examination  of  them  we 
shall  reverse  the  order  in  which  they  were  discussed  at  the  bar. 
Briefly  stated,  the  questions  are  as  follows  : 

First.  Whether  the  defendants  acquired  any  right,  title,  or 
interest  in  the  lands  in  controversy,  by  virtue  of  the  provisions  of 
their  charter,  as  originally  granted  by  the  territorial  legislature  ? 
and  if  not,  then — 

Secondly.  Whether  the  territory,  as  a  municipal  corporation,  by 
the  true  construction  of  the  act  of  Congress  set  up  in  the  answer, 
acquired,  under  it,  any  beneflcial  interest  in  the  same,  as  contra- 
distinguished from  a  mere  naked  trust  or  power  to  dispose  of  the 
land,  in  the  manner  and  for  the  use  and  purpose  described  in  the 
act? 

Argument  is  not  necessary  to  show  that  those  questions  arise 
in  the  case,  because,  if  the  defendants  acquired  such  a  right,  title, 
or  interest  in  the  lands,  under  their  original  charter,  then  it  is 
clear  that  it  became  a  vested  interest  as  soon  as  the  act  of  Con- 
gress went  into  effect ;  and  on  that  state  of  the  case  it  would  be 
true,  as  contended  by  the  defendants,  that  the  repealing  act  set 
up  in  the  replication  of  the  plaintiff  is  void,  and  of  no  effect. 
{Terret  v.  Taylor  9  Cran.,  43  ;  Paiclet  v.  Clarke,  9  Cran.,  292.) 

But  the  determination  of  that  question  in  the  negative  does  not 
necessaril}^  show  that  the  plaintiff  is  entitled  to  prevail  in  the 
suit,  because,  if  the  legal  effect  of  the  act  of  Congress  set  up  in 
the  answer  was  to  grant  to  the  territor}'^  a  beneficial  interest  in 
the  lands,  then  it  is  equally  clear  that  it  was  not  competent  for 
Congress  to  pass  the  repealing  act,  and  divest  the  title  ;  and  the 
defendants,  on  the  facts  exhibited  in  the  pleadings,  although  they 
did  not  acquire  anj^  title  under  their  original  charter,  are,  never- 
theless, the  rightful  owners  of  the  land,  by  virtue  of  the  first 
amendment  to  the  same,  passed  by  the  territorial   legislature. 


340  Rice  v.  Railroad  Company. 

Unless  both  of  the  questions,  therefore,  are  determined  in  the 
negative,  the  judgment  of  the  court  below  must  be  affirmed. 
{Fletcher  v.  Peel;  G  Cran.,  135.) 

It  is  insisted  by  the  defendants  that  their  original  charter,  or 
that  part  of  it  already  recited,  operated  as  a  valid  grant  to  them 
of  all  the  lands  thereafter  to  be  granted  by  Congress  to  the  terri- 
tory, and  that  the  charter  took  effect  as  a  grant,  so  as  to  vest  the 
title  in  the  company  the  moment  the  act  of  Congress  was  passed. 
But  it  is  very  clear  that  the  proposition  cannot  be  sustained,  for 
the  reason  that  both  principle  and  authority  forbid  it.  Grants 
made  by  a  legislature  are  not  warranties  ;  and  the  rule  univer- 
sally applied  in  determining  their  effect  is,  that  if  the  thing 
granted  was  not  in  the  grantor  at  the  time  of  the  grant,  no  estate 
passes  to  the  grantee.  Even  the  defendants  admit  that  such  was 
the  rule  at  common  law ;  but  they  contend  that  the  rule  is  not 
applicable  to  this  case.  Several  reasons  are  assigned  for  the  dis- 
tinction ;  but  when  rightly  considered,  they  have  no  better  foun- 
dation than  the  distinction  itself,  which  obviously  is  without 
merit. 

One  of  the  reasons  assigned  is,  that  there  is  no  common  law  of 
the  United  States,  and  consequently  that  the  rule  just  mentioned 
is  inapplicable  to  cases  of  this  description.  Jurisdiction,  in  com- 
mon law  cases,  can  never  be  exercised  in  the  federal  courts,  unless 
conferred  by  an  act  of  Congress,  because  such  courts  are  courts 
of  special  jurisdiction,  and  derive  all  their  powers  from  the  con- 
stitution and  the  laws  of  Congress  passed  in  pursuance  thereof. 
Rules  of  decision,  also,  jn  cases  within  the  thirty-fourth  section 
of  the  judiciary  act,  are  derived  from  the  laws  of  the  States,  but 
in  the  construction  of  the  laws  of  Congress  the  rules  of  the  com- 
mon law  furnish  the  true  guide  ;  and  the  same  remark  applies  in 
the  construction  of  the  statutes  of  a  State,  except  in  cases  where 
the  courts  of  the  State  have  otherwise  determined. 

Able  counsel  submitted  the  same  proposition  in  the  case  of 
Charles  River  Bridge  v.  The  Warren  Bridge  (11  Pet.,  545),  but 
this  court  refused  to  adopt  it,  and  in  effect  declared  that  the  rules 
for  the  construction  of  statutes  in  the  federal  courts,  both  in  civil 
and  criminal  cases,  were  borrowed  from  the  common  law.  (See, 
also,  1  Story,  Com.  on  Con.,  3d  ed.,  sec.  158.) 

More  direct  adjudications,  however,  as  to  the  validity  of  a  grant 
where  the  title  was  not  in  the  grantor  at  the  time  it  wns  made  are 
to  be  found  in  the  earlier  decisions  of  this  court.     Three  times. 


Rice  v.  Railroad  Company.  341 

at  least,  the  question  has  been  expressly'  tu\oA,  and  in  every 
instance  in  tlie  same  wa5\  It  was  first  presented  in  the  ease  of 
Polk's  Lessee  v.  Wendell  (9  Cran.,  09).  and  the  court,  Marshall,  C. 
J.,  deliverino;  the  oi)inion,  said  that  where  the  State  had  no  title  to 
the  thing  granted,  or  where  the  officer  issuing  it  iiad  no  authorit}^ 
the  grant  is  absolutely  void.  Five  years  afterwards  the  same 
case  was  again  brought  before  the  court,  and  the  same  doctrine 
was  afl3rmed  in  the  same  words.  {Polk's  Lessee,  v.  Wendell,  5 
Wheat.,  303.) 

Notwithstanding  those  decisions,  the  question  was  presented  to 
the  court  for  the  third  time  in  the  case  of  Patterson  v.  Winn  (11 
Wheat.,  388) ;  and  on  that  occasion  this  court,  after  referring  to  the 
previous  decisions,  said,  we  may  therefore  assume  as  the  settled 
doctrine  of  the  court  that  if  a  patent  is  absolutely  void  upon  its 
face,  or  the  issuing  thereof  was  without  authority  or  prohiliited 
by  statute,  or  the  State  had  no  title,  it  may  be  impeached  collat- 
erally in  a  court  of  law  iu.an  action  of  ejectment. 

Assuming  the  rule  to  be  a  sound  one,  it  is  as  applicable  to  a 
grant  by  a  territory  as  to  one  made  by  a  State,  and  the  cases  cited 
are  decisive  of  the  point.  Our  conclusion,  therefore,  on  this  branch 
of  the  case  is,  that  the  defendants  acquired  no  right,  title,  or  interest 
in  the  lands  in  controversy  by  virtue  of  their  original  charter. 

2.  Having  disposed  of  the  first  question,  we  will  proceed  to  the 
consideration  of  the  second,  which  involves  the  inquiry  whether 
any  beneficial  interest  in  the  lands  passed  to  the  territory  under 
the  act  of  Congress  set  up  in  the  answer.  It  is  contended  by  the 
defendants,  on  this  branch  of  the  case,  that  the  act  of  Congress 
in  question  was  and  is,  per  se,  a  grant  in  presenti  to  the  territory 
of  all  the  lands  therein  described,  and  that  a  present  right,  estate 
and  interest  in  the  same  passed  to  the  territory  by  the  terms  of 
the  act.  Reliance  for  the  support  of  that  proposition  is  chiefly 
placed  upon  the  language  of  the  first  section.  Omitting  all  such 
parts  of  it  as  are  unimportant  in  this  investigation,  it  provides  : 
"That  there  shall  be,  and  is  hereby,  granted  to  the  Territory  of 
Minnesota,  for  the  purpose  of  aiding  in  the  construction  of  a  rail- 
road, *  *  *  every  slternate  section  of  land,  designated  by 
odd  numbers,  for  six  sections  in  width  on  each  side  of  said  road 
within  said  territory,  *  *  *  which  land  shall  be  held  by  the 
Territory  of  :MinneRota  for  the  use  and  purpose  aforesaid."  Cer- 
tain  words  in  the  clause  are  omitted,  because  they  are  not  material 
to  the  present  inquiry,  and  if  produced  would  only  serve  to  em. 


342  Rice  v.  Railroad  Company. 

barrass  the  investigation.  Standing  alone,  the  clause  furnishes 
strong  evidence  to  refute  the  proposition  of  the  defendants  that 
a  beneficial  interest  passed  in  presenti  to  the  territory,  because  it 
is  distinctly  provided  that  the  lands  granted  shall  be  held  by  the 
territory  for  a  declared  use  and  purpose,  evidently  referring  to  the 
contemplated  railroad,  which,  when  completed,  would  be  a  public 
improvement  of  general  interest.  Resort  to  construction,  how- 
ever, on  this  point  is  wholly  unnecessary,  because  it  is  expressly 
declared  in  the  second  proviso  that  the  land  hereby  granted  shall 
be  exclusively  applied  in  the  construction  of  that  road  for  which  it 
was  granted,  and  shall  be  disposed  of  only  as  the  work  progresses  ; 
and  the  same  shall  be  applied  to  no  other  purpose  whatever. 
Be^^ond  question,  therefore,  the  lands  were  to  be  held  by  the  terri- 
tory only  for  the  use  and  purpose  of  constructing  the  railroad 
described  in  the  act,  and  they  were  to  be  applied  to  that  purpose 
and  no  other. 

Passing  over  the  residue  of  the  se.ction,  and  also  the  second 
section,  as  unimportant  in  this  inquiry,  we  come  to  the  third, 
which  shows  even  more  decisively  than  the  first  that  the  interpre- 
tation assumed  by  the  defendants  cannot  be  sustained.  Among 
other  things  it  provides:  "That  the  said  lands  hereby  granted 
shall  be  subject  to  the  disposal  of  any  legislature  thereof  for  the 
purpose  aforesaid,  and  no  other  ;  nor  shall  they  enure  to  the  benefit 
of  any  company  heretofore  constituted  and  organized."  Such  dis- 
posal of  the  lands  could  not  be  made  under  the  previous  legisla- 
tion of  the  territory,  for  the  reasons  already  assigned  in  answer 
to  the  first  proposition  of  the  defendants,  and  we  may  now  add 
another,  which  is,  that  no  such  authority  was  conferred  in  the  act 
of  Congress  granting  the  land. 

Whether  we  look  at  the  language  employed,  or  the  purpose  to 
be  accomplished,  or  both  combined,  the  conclusion  is  irresistible 
that  it  was  by  future  action  only  that  the  legislature  was  author- 
ized to  dispose  of  the  lands,  even  for  the  purpose  therein 
described  ;  and  it  is  clear,  irrespective  of  the  prohibitions  here- 
after to  be  mentioned,  that  they  could  not  be  disposed  of  at  all 
for  any  other  purpose,  nor  in  such  manner  that  they  would  inure 
to  the  benefit  of  any  company  previously  constituted  and  organ- 
ized. Much  reason  exists  to  conclude  that  the  latter  prohibition, 
notwithstanding  the  fact  that  the  defendants  were  not  then  organ- 
ized, includes  tlieir  company  ;  but,  in  the  view  we  have  taken  of 
the  case,  it  is  not  necessary  to  decide  that  question  at  the  present 


Rice  v.  Railroad  Company.  343 

time.  Considered  together,  and  irrespective  of  what  follows,  the 
first  and  third  sections  show  that  the  lands  were  to  be  held  by  the 
territory  for  the  declared  use  and  purpose  of  constructins;  a  speci- 
fied public  improvement ;  that  the}"  could  not  be  disposed  of  at  all, 
under  any  previous  territorial  legislation,  nor  for  any  other  pur- 
pose than  the  one  therein  declared,  nor  to  any  company  falling 
within  the  prohibition  set  forth  in  the  third  section  ;  but,  restricted 
as  the  authorities  of  the  territory  were  by  those  limitations  and 
prohibitions,  their  hands  were  still  more  closely  tied  by  the  pro- 
visions of  the  fourth  section,  which  remain  to  be  considered. 

By  the  fourth  section  it  is  provided,  "  that  the  lands  hereby 
granted  to  the  said  territory  shall  be  disposed  of  by  said  territory 
only  in  the  manner  following — that  is  to  say,  no  title  shall  vest 
in  the  said  Territory  of  Minnesota,  nor  shall  any  patent  issue  for 
any  part  of  the  lands  hereinbefore  mentioned,  until  a  continuous 
length  of  twenty  miles  of  said  road  shall  be  completed  through 
the  lands  hereby  granted.''  Provision  is  also  made  for  the  issuing 
of  a  patent  for  a  corresponding  quantity  of  the  lands  when  the 
Secretary  of  the  Interior  shall  be  satisfied  that  twenty  miles  are 
completed,  and  so  on  till  the  whole  was  finished  ;  and  it  also  pro- 
vides that,  if  the  road  is  not  completed  iu  ten  years,  no  further 
sale  shall  be  made,  and  the  lands  unsold  shall  revert  to  the  United 
States.  Comparing  the  several  provisions  together,  it  is  not  per- 
ceived that  they  are  in  any  respect  inconsistent,  and  certainly 
they  all  tend  more  or  less  strongly  to  the  same  conclusion.  Cer- 
tain lands  are  granted  to  the  territory  by  the  first  section,  to  be 
held  by  it  for  a  specified  use  and  purpose,  to  wit,  for  the  construc- 
tion of  a  specified  public  improvement,  and  to  be  exclusively 
applied  to  that  purpose,  without  any  other  restriction,  except  that 
the  lands  could  be  disposed  of  only  as  the  work  progressed.  To 
carr}'  out  that  purpose,  the  lands  were  declared  by  the  third  sec- 
tion to  be  subject  to  the  future  disposal  of  the  territorial  legisla- 
ture, but  that,  in  no  event,  should  they  inure  to  the  benefit  of  any 
company  previously  constituted  and  organized.  Neither  of  those 
sections  contain  any  words  which  necessarily  and  absolutely  vest 
in  the  territory  awy  beneficial  interest  in  the  thing  granted. 
Undoubtedly,  the  words  employed  are  sufl!lcient  to  have  that 
effect ;  and,  if  not  limited  or  restricted  b}'  the  context,  or  other 
parts  of  the  act,  they  would  properly  receive  that  construction  ; 
but  the  word  grant  is  not  a  technical  word,  like  the  Avord  enfeoff, 
and  although,  if  used  broadly,  without  limitation  or  restriction,  it 


344  Rice  v.  Railroad  Company. 

■would  carry  an  estate  or  interest  in  the  thing  granted,  still,  it 
ma3'  be  used  in  a  more  restricted  sense,  and  be  so  limited  that 
the  grantee  will  take  but  a  mere  naked  trust  or  power  to  dispose 
of  the  thing  granted,  and  to  apply  the  proceeds  arising  out  of  it 
to  the  use  and  benefit  of  the  grantor.  Whenever  the  words  of  a 
statute  are  ambiguous,  or  the  meaning  doubtful,  the  established 
rule  of  construction  is,  that  the  intention  must  be  deduced  from 
the  whole  statute,  and  every  part  of  it.  (1  Kent's  Com.,  462.) 
Intention  in  such  cases  must  govern,  when  it  can  be  discovered  : 
but,  in  the  search  for  it,  the  whole  statute  must  be  regarded,  and, 
if  practicable,  so  expounded  as  to  give  effect  to  every  part. 
That  rule  cannot  be  applied  to  this  case,  if  it  be  admitted  that  a 
beneficial  interest  in  the  lands  passed  to  the  territory,  because  it 
is  expressly  provided  by  the  fourth  section  of  the  act  that  no 
title  sliall  vest  in  the  Territory  of  Minnesota,  nor  shall  any  patent 
issue  for  any  part  of  the  lands,  until  a  continuous  length  of 
twenty  miles  of  the  road  shall  be  completed.  Unless  that  whole 
provision,  therefore,  be  rejected  as  without  meaning,  or  as  repug- 
nant to  the  residue  of  the  act,  it  is  not  possible,  we  think,  to 
hold  that  the  territory  acquired  a  vested  interest  in  the  lands  at 
the  date  of  the  act,;  and  yet  the  fourth  section  contains  the  same 
words  of  grant  as  are  to  be  found  in  the  first  and  third,  and  no 
reason  is  perceived  for  holding  that  they  are  not  used  in  the  same 
sense.  It  is  insisted  by  the  defendants  that  the  provision  does 
not  divest  the  grant  of  a  present  interest ;  that  it  only  so  quali- 
fies the  power  of  disposal  that  the  territory  cannot  place  the  title 
beyond  the  operation  of  the  condition  specified  in  the  grant.  But 
they  do  not  attempt  to  meet  the  difficulty  that,  by  the  express 
words  of  the  act,  the  absolute  title  remained  in  the  grantor,  at 
least  until  twenty  miles  of  the  road  were  completed  ;  nor  do 
they  even  suggest  by  what  process  of  reasoning  the  four  words, 
"  no  title  shall  vest,"'  can  be  shorn  of  their  usual  and  ordinary 
signification,  except  to  say  that  it  would  be  doing  great  injustice 
to  Congress  to  hold,  notwithstanding  the  words  of  the  first  sec- 
tion, that  no  title  passed  to  the  grantee.  Whether  the  provision 
be  just  or  unjust;  the  words  mentioned  are  a  part  of  the  act,  and 
it  is  not  competent  for  this  court  to  reject  or  disregard  a  material 
part  of  an  act  of  Congress,  unless  it  be  so  clearly  repugnant  to 
the  residue  of  the  act  that  the  whole  cannot  stand  together.  On 
the  other  hand,  if  it  be  assumed  that  the  territory  acquired  but  a 
mere  naked  trust  or  power  to  dispose  of  the  lands  and  carry  out 


Rice  v  Railroad  Company.  345 

the  contemplated  public  improvements  therein  described,  then 
the  whole  act  is  consistent  and  harmonious.  {Sims  v.  Lively,  14 
B.  Mon.,  432.) 

These  considerations  tend  so  strongly  to  support  the  latter 
theory,  that,  even  admitting  the  rule  of  construction  assumed  by 
the  defendants  that  the  grant  must  be  construed  most  strongly 
against  the  grantor,  we  would  still  be  constrained  to  hold  that  the 
second  proposition  submitted  by  them  cannot  be  sustained. 
Legislative  grants  undoubtedly  must  be  interpreted,  if  practi- 
cable, so  as  to  affect  the  intention  of  the  grantor  ;  but  if  the  words 
are  ambiguous,  tlie  true  rule  of  construction  is  tlie  reverse  of  that 
assumed  by  the  defendants,  as  is  well  settled  by  reijeated  decisions 
of  this  court.  {Charles  River  Bridge  v.  Warren  Bridge:  11 
Peters,  544.) 

INIost  of  the  cases  bearing  upon  the  point  previously  decided 
were  very  carefully  reviewed  on  that  occasion,  and,  consequently, 
it  is  not  necessary  to  refer  to  them. 

Judge  Stoky  dissented  from  the  views  of  the  majorty  of  the 
judges,  but  the  opinion  of  the  court  has  since  that  time  been  con- 
stantly followed. 

Later  decisions  of  this  court  regard  the  rule  as  settled,  that 
public  grants  are  to  be  construed  strictly,  and  that  nothing  passes 
by  implication.  That  rule  was  applied  in  the  case  of  Mills  et  al. 
V.  St.  Clair  County  (8  How.,  581) ;  and  the  court  say  the  rule  is, 
that  if  the  meaning  of  the  words  be  doubtful  in  a  grant,  designed 
to  be  a  general  benefit  to  the  public,  they  shall  be  taken  most 
strongly  against  the  grantee  and  for  the  government,  and.  therefore, 
should  not  be  extended  by  implication  in  favor  of  the  grantee 
beyond  the  natural  and  obvious  meaning  of  the  words  employed  ; 
and  if  those  do  not  support  the  right  claimed,  it  must  fall.  Any 
ambiguity  in  the  terms  of  the  contract,  say  the  court  in  the  case 
of  the  Richmond  R.  R.  v.  The  Louisa  R.  R.  Co.  (13  How.,  81), 
must  operate  against  the  corporation  and  in  favor  of  the  public, 
and  the  corporation  can  claim  nothing  but  what  is  given  l)y  the 
act.     {Perrine  v.  Chesapeake  Canal  Co.,  9  How.,  192.) 

Taken  together,  these  several  cases  may  be  regarded  as  estab- 
lishing the  general  doctrine,  that,  whenever  privileges  are  granted 
to  a  corporation,  and  the  grant  comes  under  revision  in  the  courts, 
such  privileges  are  to  be  strictly  construed  against  the  corporation, 
and  in  favor  of  the  ])ublic.  and  that  nothing  passes  but  what  is 
granted  in  clear  and  explicit  terms.     {Oliio  Life  and  Trust  Co.  v. 


346  Rice  v.  Railroad  Company. 

Debolt,  16  How.,  435  ;  Com.  v.  The  Erie  and  N.  E.  Railroad  Co., 
27  Penn.,  339  ;  Stourbridge  v.  Wheeley,  2  Barn.  &  Ad.,  792 ; 
Parl-er  v.  Gr^at  W.  Railway  Co.,  7  M.  &  Gr.,  253.) 

That  rule  is  plainly  applicable  to  this  case  ;  and  when  applied, 
we  think  it  is  clear  that  the  territory  acquired  nothing  under  the 
act  of  Congress  set  up  in  the  answer  but  a  mere  naked  trust  or 
power  to  dispose  of  the  lands  in  the  manner  therein  specified,  and 
to  apply  the  same  to  the  use  and  purpose  therein  specified.  Sup- 
pose it  to  be  so,  then  it  is  not  controverted  tliat  Congress  could 
at  any  time  repeal  the  act  creating  the  trust,  if  not  executed,  and 
withdraw  the  power. 

It  is  suggested,  however,  that  the  closing  paragraph  of  the 
fourth  section  of  the  act  is  inconsistent  with  this  view  of  the  case, 
but  we  think  not.  Until  the  trust  or  power  conferred  was  revoked 
by  a  repeal  of  the  act,  the  lauds  were  to  be  held  by  the  territory 
for  the  use  and  purpose  therein  described,  and,  of  course,  were  to 
be  withdrawn  from  sale  and  entry  under  the  pre-emption  laws  of 
the  United  States  ;  and  unless  some  period  was  fixed  for  the  com- 
pletion of  the  contemplated  improvement,  the  delay  might  become 
the  subject  of  complaint  and  embarrassment. 

Ten  years  were  accordingly  allowed  for  that  purpose,  and  if  the 
work  was  not  completed  within  that  time,  then  the  power  of  the 
territory  to  dispose  of  the  lands  was  to  cease,  without  any  further 
action  on  the  part  of  Congress.  Such  part  of  the  lands  as  had 
been  appropriated  at  the  expiration  of  that  period  in  execution  of 
the  work,  were  to  be  unafl'ected  by  that  provision,  but  the  residue 
would  cease  to  be  held  by  the  territory  for  the  use  and  purpose 
for  which  the  lands  had  been  granted,  and  would  again  fall  within 
the  operation  of  the  pre-emption  laws. 

Another  suggestion  is,  that  if  the  views  of  the  plaintiff  be 
adopted  by  the  court,  the  same  rule  will  apply  to  all  the  grants 
made  by  Congress  to  the  States  and  other  territories.  Of  course 
the  suggestion  is  correct,  if  such  other  grants  are  made  in  the 
same  terms,  and  are  subject  to  the  same  limitations,  restrictions, 
and  prohibitions-;  but  we  have  looked  into  that  subject,  and  think 
it  proper  to  say,  that  we  see  no  foundation  whatever  for  the 
suggestion.  One  of  those  grants  came  under  the  revision  of  the 
court  in  the  case  of  Lessieur  et  al.  v.  Price  (12  How.,  76).  and  this 
court  held,  and  we  have  no  doubt  correctly,  that  it  was  a  present 
grant,  and  that  the  legislature  was  vested  with  full  power  to  select 
and  locate  the  land  ;  but  the  case  is  so  unlike  the  present  that  we 


Rice  v.  Railroad  Company.  847 

do  not  think  it  necessaiy  to  waste  words  in  pointing  out  the 
distinction.  Our  conclusion  ui)on  the  whole  case  is,  that  the  act  of 
Congress  set  up  in  the  replication  of  the  plaintiff  is  a  valid  law, 
and  that  the  plaintiff  is  entitled  to  prevail  in  the  suit. 

Mr.  Justice  Nelson  :  I  cannot  agree  to  the  judgment  of  the 
court  in  this  case.  The  fundamental  error  of  the  opinion,  I  thiidc, 
consists  in  not  distinguishing  between  public  and  private  legisla- 
tive grants.  The  former  concern  government — are  grants  of 
political  power,  or  of  rights  of  property,  connected  with  the 
exercise  of  political  power  for  public  purposes,  in  which  no  indi- 
vidual or  corporate  body  can  set  up  a  vested  interest,  any  more 
than  a  public  functionary  can  set  up  a  vested  or  private  interest 
in  his  office.  These  are  grants  that  may  be  altered,  modified,  or 
repealed,  at  the  will  of  the  legislature.  Examples  of  this  descrip- 
tion of  grants  are  the  erection  of  towns  and  the  incorporation  of 
cities  and  villages,  to  wliich  are  delegated  a  portion  of  the  political 
power  of  the  government,  to  be  administered  within  their  limits  and 
jurisdiction.  Private  legislative  grants  are  subject  to  very  differ- 
ent considerations.  These  are  grants  of  rights  of  property,  lands, 
or  franchises,  which  ma}'  be  made  to  individuals  or  corporate 
bodies,  to  towns,  counties,  States,  or  territories,  and  in  which  the 
grantee  may  have  private  beneficial  interests.  Examples  are,  the 
grant  of  lands  to  a  town  for  the  founding  of  a  school,  or  of  a 
church,  or  for  the  benefit  of  the  poor  of  the  town.  The  grantee 
in  all  such  cases  takes  a  beneficial  interest  in  the  grant,  as 
the  representative  of  the  persons  for  whose  benefit  it  is  made. 
The  town  has  an  interest  in  the  encouragement  and  support  of 
schools,  in  the  education  of  the  people  under  its  charge,  in  the 
support  and  maintenance  of  religion  and  religious  institutions, 
and  in  the  maintenance  of  the  poor. 

It  is  well  settled  in  this  court  that  grants  of  this  description, 
when  made  bj'  the  legislature  of  a  State,  cannot  be  recalled  ;  and 
we  do  not  perceive  any  reason  why  the  inviolability  of  the  same 
class  of  grants  should  be  less  when  made  b}-  the  legislative  power 
of  the  general  government.  Congress  has  made  man}-  grants  of 
lands  to  States  and  territories  for  the  same  or  kindred  objects  ; 
for  the  founding  of  seminaries  of  learning  ;  for  building  common 
roads,  railroads,  and  canals  ;  for  reclaiming  marsh  lands,  clearing 
obstructions  from  rivers,  and  other  like  objects. 

Now,  can  it  be  said  that  the  States  and  territories  have  no  ben- 
eficial interest  in  those  grants,  or  that  the}'  hold  them  as  the  mere 


348  Rice  v.  Railroad  Company. 

agents  of  the  general  government,  or  as  naked  trustees,  and  that 
they  ma}--  be  recalled  at  pleasure  ?  I  think  not ;  certainly  tliis  is 
not  the  language  of  the  court  in  respect  to  similar  grants  made 
by  the  States  to  public  corporate  bodies,  such  as  town  and  cities. 
If  this  be  the  sound  construction  of  this  class  of  grants,  and  the 
one  to  be  hereafter  adopted  and  applied,  I  do  not  see  that  any 
effect  is  to  be  given  to  them  until  the  lands  granted  have  been 
sold  and  conveyed  to  purchasers. 

They  might  take  a  valid  title  under  the  power  of  sale  contained 
in  the  grant.  But  even  then,  the  State  or  territory  would  derive 
no  benefit  from  the  grant  after  the  sale,  for  if  they  hold  the  lands 
as  public  agents  or  naked  trustees  for  the  general  government, 
as  has  been  argued,  the  purchase-money  would  belong  to  it  and 
might  be  reclaimed.  Certainly,  if  the  States  and  territories  are 
the  mere  agents  of  the  general  government  in  the  grants  mentioned, 
the  money  would  belong  to  the  principal.  Indeed,  upon  the 
doctrine  contended  for,  I  do  not  see  how  the  sixteenth  section 
in  every  township  of  the  public  lands,  which  is  reserved  to  it  for 
common  schools,  can  be  held  by  an  indefeasable  title.  The  use 
for  which  the  grant  is  made  in  that  instance  is  as  much  a  public 
one  as  a  grant  of  land  to  the  town  to  build  a  canal,  a  turnpike, 
or  railroad.  And  if  a  public  use  of  this  description  deprives  the 
town  of  any  beneficial  interest  in  the  grant,  then  Congress  may 
reclaim  this  sixteenth  section,  if  unsold,  and  if  sold,  the  purchase- 
money. 

It  has  been  strongly  insisted,  that  the  grant  in  question  rests 
upon  different  principles  from  one  in  which  the  title  to  the  lands 
has  vested  directly  in  the  State  or  territory  upon  the  passage  of 
the  law. 

The  3d  section  provides  that  the  lands  hereby  granted.  &c., 
shall  be  subject  to  the  disposal  of  the  legislature  of  the  territory 
for  the  purpose  mentioned.  The  4th  section  :  The  lands  hereby 
granted,  &c.,  shall  be  disposed  of  by  the  territory  in  the  following 
manner  :  No  title  shall  vest  in  said  territory,  nor  shall  any  patent 
issue  for  any  part  of  the  land,  until  a  continuous  length  of  twenty 
miles  of  said  road  shall  be  completed  ;  and  when  the  Secretary  of 
the  Interior  shall  be  satisfied  that  any  twenty  miles  has  been  made, 
a  patent  shall  issue  for  a  quantity  of  land  not  exceeding  one 
hundred  and  twenty  sections,  and  so  on,  until  the  road  is  finished. 
And  then  ten  years  is  given  for  the  completion  of  the  road. 

This  is  a  conditional  grant,  the  condition  particularly  specified 


Rice  v.  Railroad  Company.  349 

in  this  fourth  section.  The  condition  is,  the  constrnction  of 
twent}^  miles  of  the  road,  when  one  hundred  and  twent_v  sections 
are  to  be  conveyed,  and  so  on.  The  idea  seems  to  be,  that  a  con- 
ditional grant  of  this  description  may  be  revoked,  but  not  one 
absolute  in  its  terms.  I  am  not  aware  of  any  such  distinction. 
Certainly  none  is  to  be  found  in  the  common  law.  At  common 
law  or  in  equit}"^  a  conditional  grant  is  just  as  obligatory  and 
indefeasable  between  the  parties  as  *one  that  is  absolute.  The 
grant  carries  with  it  not  only  tlie  right,  but  the  obligation,  of  tlie 
grantee  to  fulfill  the  condition  ;  and  until  the  failure  to  fulfill,  the 
obligation  is  complete  and  the  grant  irrevocable. 

It  would  be  singular  if  the  grantor,  by  availing  himself  of  his  own 
wrong  in  not  waiting  for  the  performance  of  the  condition,  could 
defeat  the  grant.  Certainly  it  cannot  be  maintained,  that  the 
grant  of  land  on  condition  is  no  grant  until  the  condition  is  per- 
formed. And,  if  so,  tlien  wh}'  not  as  effectual  and  binding  as  an 
absolute  grant,  until  default  in  the  condition  ? 

But  there  is  another  equally  satisfactory-  answer  to  this  ground 
for  revoking  the  grant.  The  provision  relied  on,  instead  of  fur- 
nishing evidence  of  any  intent  not  to  make  a  binding  grant  to  the 
territory,  leads  to  a  contrary  conclusion.  Its  object  cannot  be 
mistaken.  It  was  to  secure  the  application  of  the  lands  or  the 
proceeds  of  them  to  the  construction  of  the  road.  The  act  had 
before  declared  that  the  lands  granted  should  be  disposed  of  by 
the  territor}^  only  as  the  work  progressed,  and  in  furtherance  of 
this  purpose,  and  to  prevent  any  failure  of  it,  provided  that  no 
title  should  vest  or  patent  issue  except  from  time  to  time  as 
twenty  miles  of  the  road  were  completed.  The  argument  that  this 
provision  indicates  an  intention  on  the  part  of  Congress  not  to 
vest  any  beneficial  interest  in  the  territory  in  the  lands,  seems  to 
me  to  be  founded  on  a  misapprehension  of  its  purport  and  effect, 
which  was  simplj'  to  secure  the  accomplishment  of  the  purposes 
of  the  grant. 

Then,  as  to  the  difference  between  this  grant  and  the  numerous 
others  of  similar  description,  which  it  is  said  are  subject  to  a 
different  interpretation.  I  have  examined  several  of  them.  The 
present  one  is  a  copy  of  the  others  mutatis  imitandls,  with  one 
exception,  and  that  is,  instead  of  withholding  the  title  to  the  lands 
till  the  twent}^  miles  of  the  road  are  completed,  the  act  forbids 
the  sale  of  them  till  the  condition  is  fulfilled.  In  the  one  instance. 
on  satisfying  the  Secretary  of  the  Interior  that  the  twenty  miles 


350  Baker  v.  Gee. 

have  been  constructed,  the  patent  issues  for  the  several  sections 
specified  ;  in  the  other,  on  satisfying  him  that  the  work  has  been 
done,  he  gives  to  the  State  or  territory  an  authority  to  sell.  The 
diflerent  provisions  prescribed  a  different  mode  of  securing  the 
application  of  the  lands  to  the  purpose  of  the  grant.  This  is  the 
object  and  only  object  of  each  of  them  ;  and  so  far  as  this  dis- 
tinction goes,  other  grants  of  this  description  will  be  entitled  to 
the  benefit  of  it  in  case  of  any  attempt  to  revoke  them. 

Mr.  Justice  Wayne  concurred  in  the  dissent  expressed  by 
Mr.  Justice  Nelson,  and  added,  as  a  further  reason  against  the 
judgment  of  the  court,  that  after  this  grant  was  made,  more  than 
a  million  of  dollars  was  subscribed  upon  the  faith  of  it  to  the 
railroad  corporation. 

Mr.  Chief  Justice  Taney,  Mr.  Justice  Grier,  and  Mr. 
Justice  Swayne  concurred  in  the  opinion  of  Mr.  Justice  Clifford. 

Mr.  Justice  Catron  did  not  sit  in  the  case,  being  prevented 
by  illness. 

Judgment  of  the  District  Court  reversed,  and  the  cause  re- 
manded, with  directions  to  overrule  the  demurrer  filed  by 
the  defendants,  issue  a  writ  of  inquiry  to  ascertain  the 
plaintiff's  damages,  and  after  the  return  of  the  inquistion 
to  enter  judgment  in  his  favor. 


Baker  v.  Gee. 
December  Term,  1863.— 1  Wallace,  333. 

1.  Under  the  act  of  Congress  of  June  10,  18o2,  giving  to  the  State  of 

Missouri  certain  lands  for  railroad  purposes,  and  the  act  of  that  State 
of  September  20,  1852,  accepting  them  and  making  provision  in 
regard  to  them,  the  location  of  the  lands  was  not  fixed  within  the 
meaning  of  those  acts  by  tlie  mere  location  of  the  road ;  nor  was  it 
fixed  until  the  railroad  company  caused  a  map  of  the  road  to  be 
recorded  in  the  office  for  recording  deeds  in  the  county  where  the 
land  was  situated,  this  sort  of  location  being  the  Idnd  required  by 
the  last  act. 

2.  Where  Congress  gives  land  to  a  State  for  raili'oad  purposes  and  for 

"no  other,"  and  the  State  granting  the  great  bulk  of  them  to  such 
purposes  allows  settlements  by  pre-emption,  where  improvement  and 
occupancy  had  been  made  on  the  lands  prior  to  the  date  of  the  grant 


Baker  v.  Gee.  351 

by  rongress  and  since  continued,  a  pnrcliaser  from  the  railroad 
companj^  o'  a  part  wiiich  the  State  had  thus  opened  to  pre-emption 
cannot  object  to  the  act  of  the  State  in  having-  tiius  appropriated 
the  part ;  the  raih-oad  company  having,  by  formal  acce]jtance  of 
the  bulk  of  the  land  under  the  same  act  which  opened  a  fractional 
part  to  pre-emption,  itself  waived  the  right  to  do  so.  The  United 
States  as  donor  not  objecting,  nobody  can  object. 

Error  to  the  Circuit  Court  for  the  District  of  Missouri,  the 
case  being  thus  : 

On  the  10th  June,  1852,  Congress,  by  statute  (10  Stat,  at  Large, 
8),  granted  to  the  State  of  Missouri,  to  aid  in  building  railroads 
from  Hannibal  to  St.  Joseph,  the  right  of  way  through  the  public 
lands,  and  every  alternate  section  designated  by  even  numbers  for 
six  sections  in  width  on  each  side  of  said  roads.  The  statute 
directed  that  "  a  copy  of  the  location  of  the  roads,  made  under 
the  direction  of  the  legislature,"  should  be  forwarded  to  the  proper 
local  land  offices  and  General  Land  Office  at  Washington,  and 
that  the  lands  thus  given  should  be  disposed  of  by  the  State  for 
the  purposes  contemplated  and  for  "no  other." 

On  the  20th  September  of  the  same  year  the  legislature  of 
Missouri,  by  an  act  passed  to  accept  the  bounty  of  Congress 
(Session  Acts,  1853,  p.  15),  required  that  the  lands  should  be 
selected  by  the  company  under  the  direction  of  the  governor,  and 
that  a  copy  of  the  "location  of  the  road"  should  be  certified  to 
the  local  land  offices  and  the  General  Land  Office,  in  conformity 
with  the  act  of  Congress. 

One  section  of  the  act  (the  fifth)  gave  a  pre-emption  right,  at 
a  price  specified  to  settlers  in  actual  occupanc3^  and  who  had 
improved  the  land  occupied  prior  to  the  date  of  the  gift,  10th 
June,  1852,  by  Congress,  and  to  a  certain  extent  on  any  land 
embraced  in  the  grant,  provided  certain  conditions  were  complied 
with,  among  which  was  that  the  party  claiming  pre-emj)tion  should, 
"within  four  months  from  the  date  of  the  location  of  the  lands." 
file  in  the  clerk's  office  of  the  circuit  court  of  the  county  in  which 
the  land  was  situated  a  notice  to  the  corporation  of  the  claim. 
Another  section  obliged  the  company,  within  one  year  after  their 
road  should  have  been  located,  to  file  a  map  or  profile  of  it,  and 
a  map  of  the  land  obtained  for  the  use  of  the  road,  in  the  office 
of  the  Secretarj^of  State,  and  have  record  made  of  the  lands  lying 
in  each  count}'  in  the  office  for  recording  deeds.  The  act  and  all 
the  grants  contained  in  it  were  to  cease  and  be  void  unless  the 


352  Baker  v.  Gee. 

acceptance  of  the  company  should  within  six  months  be  filed  in 
the  orlice  of  the  Secretary  of  State. 

On  the  23d  November,  1857,  a  further  act  was  passed  making 
it  the  duty  of  the  land  agents  of  the  road  to  file  in  the  different 
counties  through  which  their  road  pass  a  descriptive  list  of  their 
lands. 

The  location  of  the  line  and  route  of  the  road  was  made  on  the 
8th  March,  1853,  and  the  acceptance  of  the  company  duly  filed 
with  the  Secretary  of  State  on  the  17th  of  the  same  month  ;  but 
there  was  no  proof  of  the  time  when  the  lands  were  actually 
located,  nor  any  proof  that  descriptive  lists  were  ever  filed  in  the 
different  counties  until  after  the  passage  of  the  act  of  1857. 

In  this  state  of  the  law  and  facts,  one  Gee  having  entered, 
in  1849,  upon  such  part  of  one  of  the  sections  as  the  act  of  Mis- 
souri opened  to  pre-emption,  and  complied  with  the  several  con- 
ditions—such as  occupancy,  &c.,  prior  to  the  gift  by  Congress— he 
instituted  on  the  3d  of  January,  1854,  the  proper  proceedings  to 
establish  his  right  to  purchase  the  land.  He  was  denied,  how- 
ever, the  right,  on  the  ground  that  he  had  not  made  his  claim  in 
due  season. 

In  the  meantime  one  Baker  purchased  the  land  from  the  rail- 
road company,  and,  setting  up  a  title  under  that  purchase,  brought 
the  present  suit  (ejectment)  against  Gee, to  recover  the  land  which 
the  latter  claimed  by  right  of  pre-emption — a  sort  of  title  which 
in  ISIissouri  is  recognized  as  sufficient  to  maintain  or  defend  a 
suit  in  ejectment — the  ground  of  Baker's  claim  being  that  Gee 
was  obliged  to  show  that  he  gave  the  notice  required  by  the  fifth 
section  of  the  Missouri  act  of  September  20,  1852,  within  four 
months  of  the  location  of  the  road,  such  location,  as  Baker  con- 
tended, having  been  a  location  of  the  lands  also  ;  the  whole  region 
there  having  long  been  surveyed  and  subdivided  by  the  United 
States,  the  sections  designated  by  even  numbers  already  laid  down 
on  the  public  maps,  and  the  location  of  all  the  lands  granted  being 
made  so  soon  as  the  railroad  itself — which  location  was  the  rule 
and  exponent  of  this  also — was  definitely  fixed  and  marked  on 
maps  by  tlie  State.  When  this  was  done  nothing  additional,  it 
was  argued,  could  by  intendment  be  necessary  to  give  precision 
to  the  site  of  the  lands,  or  to  render  their  location  more  certain 
or  more  easy  of  ascertainment.  The  court  below,  however,  was 
not  of  the  opinion,  and  ruled  "that  the  location  of  the  land  in 
question  by  the  Hannibal  and  St.  Joseph  Railroad  Company  was 


Baker  v.  Gee.  353 

not  complete,  as  regarded  this  defendant,  until  the  said  company 
caused  a  map  thereof  to  be  recorded  in  the  ottice  for  recording 
deeds  in  wiiich  the  said  land  is  situated."  Verdict  and  judsjment 
were  accordingly  givei\  in  favor  of  tiie  pre-emptor.  On  error  here 
the  correctness  of  the  ruling  just  mentioned  was  one  point  in  ques- 
tion ;  a  second  point  raised  and  argued  being  the  power  of  the 
State  of  Missouri,  under  the  act  of  Congress  which  gave  the  lands 
for  railroad  i)urposes  and  for  "no  otlier."  to  o|)en  any  part  of  it 
to  pre-emption  purchasers. 

Mr.  GanI  for  the  purchaser.  Baker:  and  Mr.  Kruiu  for  the 
pre-emptor,  Gee. 

Mr.  JrsTK  e  Davis,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

The  practical  question  involved  in  this  case  is  one  of  easy 
solution.  It  is  this  :  "When  did  the  right  of  pre-emption,  under 
the  fifth  section  of  the  act  of  September  20th,  cease  ?  '*  Mani- 
festly, after  four  months  from  the  location  of*the  lands.  It  is 
argued  that  Gee's' right  was  at  an  end  if  he  did  not  prove  his 
claim  within  four  months  from  the  location  of  the  road.  But  such 
a  construction  would  render  valueless  a  wise  provision,  which  the 
legislature  of  Missouri,  in  the  exercise  of  an  enlightened  liberal- 
ity, had  conferred  on  a  deserving  class  of  people.  It  is  not 
probable  that  a  man  whose  necessities  compelled  him  to  claim  the 
benefits  of  a  pre-emption  law.  living  in  an  interior  county,  away 
from  the  local  land  offices,  would  be  correctly  informed  even  of 
the  location  of  the  route  of  a  railroad,  and  he  certainly  could  not 
know  what  lands  would  belong  to  the  company,  unless  he  knew 
the  exact  line  the  road  had  taken-  And  the  legislature,  in-  order 
to  render  the  provision  for  an  actual  settler  a  privilege,  and  not  a 
delusion,  directed  the  company,  within  one  year  after  the  line 
of  the  road  was  fixed,  to  have  a  map  of  their  lands  recorded  in 
the  diflTerent  counties  through  which  their  road  passed. 

It  is  said  that,  owing  to  the  accuracy  of  the  government  sur- 
veys, whenever  the  location  of  one  of  these  land-grant  roads  is 
settled,  it  is  an  easy  matter  to  ascertain  tiie  lands  that  would 
belong  to  it. 

If  the  location  of  the  road  was  always  on  section  lines,  it 
would  not  be  difficult  to  select  the  even  sections  within  six  miles 
of  each  side  of  the  road.     But  a  railroad  rarely  runs  on  straight 

23 


354  SCIIULENBERG  V.   HaRRIMAN. 

lines.  It  makes  short  cuvAes  very  often,  and  frequently  runs 
diagonally  across  sections.  It  is  well  known  that  the  general 
land  office  has  encountered  great  difficulties  in  making  correct 
selections  of  the  lands  which  the  bounty  of  Congress  has 
bestowed  on  the  States  to  aid  in  works  of  internal  improvement. 
The  selection  is  not  merely  mechanical,  but  requires  skill  and 
familiarity  with  land  plats  and  surveys.  On  inquiry  of  the  Com- 
missioner of  the  General  Land  Office,  we  learn  that,  in  this  very 
case,  the  descriptive  lists  of  the  lands  to  which  the  road  was 
entitled,  were  not  approved  and  signed  by  the  Secretary  of  the 
Interior  until  February  10th,  1854,  which  was  more  than  a  month 
after  Gee  filed  his  claim  and  accompanj'ing  proofs.  And  to 
make  it  more  evident  that  it  is  not  an  easy  task  to  make  an 
accurate  description  of  the  lands  really  granted,  we  learn,  further, 
that  additional  lists  were  afterwards  certified  to  the  State,  in  aid 
of  said  railroad,  from  time  to  time,  and  as  late  as  the  15th  of 
November,  1859. 

It  is  contended  that  the  legislature  of  Missouri  had  no  power 
to  grant  the  privileges  of  pre-emption.  If  this  was  a  contest 
between  the  United  States  and  the  State  of  Missouri,  the  ques- 
tion of  power  would  be  a  proper  subject  for  examination.  But 
the  United  States  are  not  complaining,  and  no  other  party  has  a 
right  to  complain.  If  the  act  of  the  legislature  imposed  burdens, 
it  nevertheless  conferred  great  privileges,  and,  if  any  right  to 
object  existed,  it  was  waived  when  the  company  filed  their  accept- 
ance with  the  Secretary  of  State. 

It  follows  that  the  court  below  committed  no  error  in  holding 
"  that  the  location  of  the  land  in  question,  by  the  Hannibal  and 
St.  Joseph  Railroad  Company,  was  not  complete,  as  regards  this 
defendant,  until  said  company  caused  a  map  thereof  to  be 
recorded  in  the  office  for  recording  deeds,  in  the  county  in  which 
said  land  is  situated,"  Judgment  affirmed,  with  costs. 


SCHULENBERG    ET    AL.    V.    HaRRHVIAN. 

October  Term,  1874.— 21  Wallace,  44. 

].  On  the  3d  of  Tune,  1856,  Congress  passed  an  act  entitled  "  An  act 
granting  public  lands  to  the  State  of  Wisconsin  to  aid  in  the  con- 
struction of  railroads  in  said  State."     That  act  grants  to  the  State 


SCHULENBERG  V.   HaRRIMAN.  355 

for  the  purpose  of  aiding  in  the  construction  of  a  railroad  between 
certain  specilied  points,  every  alternate  section  of  land,  designated 
by  an  odd  number,  for  six  sections  in  width  on  each  side  of  Ihe  road. 
The  language  of  the  first  section  of  the  act  is,  ■  •  that  there  be,  an/lis  hf-reby 
granted  to  the  State  of  Wisconsin,  "the  lands  specified.  'Ihe  third  sec- 
tion declares  '-that  the  said  lands  hereby  granted  to  said  State  .-hall  be 
subject  to  the  disposal  ot  the  legislature  thereof;"  and  the  fourth 
section  provides  in  what  manner  sales  shall  be  made,  and  enacts 
that  if  the  road  be  n^t  comi)leted  within  ten  years,  •'  no  further  sales 
shall  be  made,  and  the  lands  unsold  shall  revert  to  the  United  States." 
The  State  accepted  the  grant  thus  made,  and  as.sumed  the  execution 
of  the  trust,  'ihe  route  of  the  road  was  surveyed,  and  a  map  of  its 
location  was  filed  in  the  land  office  at  Washington.  The  adjoining 
odd  sections  within  the  prescribed  limits  were  then  withdrawn  from 
sale  by  the  pi-oper  officers  of  the  government,  and  certified  lists 
thereof,  approved  by  tlie  Secretary  of  tiie  Interior,  were  delivered 
to  the  State.  Subsequently,  on  the  oth  of  May,  1S(!4.  Congress 
passed  another  act  on  the  same  subject,  entitled  "An  act  granting 
lands  to  aid  in  the  construction  of  certain  railroads  in  the  State  of 
Wisconsin."  By  its  first  section  additional  land  is  granted  to  the 
State  upon  the  same  terms  and  conditions  as  those  contained  in  the 
previous  act,  for  the  purpose  of  aiding  in  the  construction  of  tlie  road 
between  certain  of  the  points  designated  in  the  act  of  18-50,  and  the 
last  act  extends  the  time  for  completing  the  road  for  five  years. 
'J'his  road  has  never  been  constructed,  nor  any  part  of  it,  and  the 
time  for  its  construction  has  not  been  extended  since  the  act  of 
1864.  Nor  has  Congress  passed  any  act,  nor  have  any  judicial  pro- 
ceedings been  taken  to  enforce  a  forfeitui-e  of  the  grants  for  failure 
to  construct  the  road  within  the  period  prescribed.     Held— 

1st.  That  the  act  of  June  M,  18"»(i,  and  the  first  section  of  the  act 
of  May  5th,  1864,  are  grants  in  prestenti,  and  passed  the  title  to  the 
odd  sections  designated  to  be  afterwards  located;  when  the  route 
was  fixed  their  location  became  certain,  and  the  title,  which  was 
previously  imperfect,  acquired  precision  and  became  attached  to  the 
land. 

.  2d.  That  the  lands  granted  have  not  reverted  to  the  United  States, 
although  the  road  was  not  constructed  within  the  period  prescribed, 
no  action  having  been  taken  either  by  legislation  or  judicial  pro- 
ceedings to  enforce  a  forfeiture  of  the  grants. 

2.  Unless  there  are  clauses  in  a  statute  restraining  the  operation  of 

w-ords  of  present  grant,  these  must  be  taken  in  their  natin-al  sense 
to  import  an  immediate  transfer  of  title,  althougii  subsequent  pro- 
ceedings maybe  required  to  give  precision  to  that  title  and  attach  it 
to  specific  tracts.  No  individual  can  call  in  question  the  validity  of 
the  proceedings  by  which  precision  is  thus  given  to  the  title,  where 
the  United  States  are  satisfied  witli  them. 

3.  The  provision  in  the  act  of  18.56,  that  all  lands  remaining  unsold  after 

ten  years  shall  revert  to  the  United  States,  if  the  road  be  not  then 


356  SCHULENBERG  V.   HaRRIMAN. 

completed,  is  a  condition  subsequent,  being  in  effect  a  provision  that 
the  grant  to  the  extent  of  the  lands  unsold  shall  be  void  if  the  work 
designated  be  not  done  within  that  period. 

4.  No  one  can  take  advantage  of  the  non-performance  of  a  condition 
subsequent,  annexed  to  an  estate  in  fee,  but  the  grantor  or  his  heirs 
or  successors,  and  if  thej^  do  not  see  fit  to  assert  their  right  to  enforce 
a  forfeiture  on  tliat  ground,  tlie  title  remains  unimpau-ed  in  the  . 
grantee,  'i'he  rule  equally  obtains  where  the  grant  upon  condition 
proceeds  from  the  government. 

.").  The  manner  in  which  the  reserved  right  of  the  grantor  for  breach  of 
the  condition  must  be  asserted  so  as  to  restore  the  estate,  depends 
upon  the  character  of  tlie  grant.  If  it  be  a  private  grant,  that  right 
nmst  be  asserted  by  entry,  or  its  equivalent.  If  the  grant  be  a 
public  one,  the  right  must  be  asserted  by  judicial  proceedings  author- 
ized by  law,  or  there  must  be  some  legislative  assertion  of  owner- 
ship of  the  property  for  breach  of  the  condition,  such  as  an  act 
directing  the  possession  and  appropriation  of  the  property,  or  that 
it  be  oflered  for  sale  or  settlement. 

6.  Where  the  title  to  land  remains  in  the  State,  timber  cut  upon  the  land 

belongs  to  the  State.  Whilst  the  timber  is  standing  it  constitutes  a 
part  of  the  realty ;  being  severed  from  the  soil  its  character  is 
changed ;  it  becomes  personalty,  but  its  title  is  not  attected  ;  it  con- 
tinues as  previously  the  property  of  the  owner  of  the  land,  and  can 
be  pursued  wherever  it  is  carried.  All  the  remedies  are  open  to  the 
owner  which  the  law  aftbrds  in  other  cases  of  the  wrongful  removal 
or  conversion  of  personal  property. 

7.  Where  logs  cut  from  the  lands  of  the  State  without  license  have  been 

intermingled  with  logs  cut  from  other  lands,  so  as  not  to  be  distin- 
guishable, the  State  is  entitled,  under  the  law  of  Minnesota,  to 
replevy  an  equal  amount  from  the  whole  mass.  The  remedy  afforded 
by  the  law  of  Minnesota  in  such  case  held  to  be  just  in  its  operation 
and  less  severe  than  that  wliich  the  common  law  would  authorize. 

8.  Where,  in  an  action  of  replevin,  the  complaint  alleges  property  and 

riglit  of  possession  in  the  plaintiffs,  and  the  answer  traverses  directly 
these  allegations,  under  the  issue  thus  formed  any  evidence  is  admis- 
sible on  the  part  of  the  defendant,  which  goes  to  show  that  the  plain- 
tiffs have  neither  property  nor  right  of  possession.  Evidence  of  title 
in  a  stranger  is  admissible. 

Error  to  the  Circuit  Court  for  the  District  of.Minnesota. 

Schulenberg  and  others  brought  replevin  against  Harrinian  for 
the  possession  of  certain  personal  pi-operty,  consisting  of  over 
sixteen  hundred  thousand  feet  of  pine  saw-logs,  claimed  by  them, 
and  alleged  to  be  unlawfully  detained  from  them  by  the  defendant. 
The  logs  thus  claimed  were  cut  on  lands  embraced  in  an  act  of 
Congress,  approved   June    3,   1856,  entitled   "An    act   granting 


SCHULENBERG  V.   HaRRIMAN.  357 

public  lands  to  the  State  of  Wisconsin  to  aid  in  the  construction 
of  railroads  in  said  State.  (11  Stat,  at  Large,  20.)  That  act' 
declares  in  its  first  section  "that  there  be,  and  is  hereby  granted 
to  the  State  of  Wisconsin,  for  the  purpose  of  aiding  in  the  con-"- 
structiDn  of  a  railroad  from  IVIadison  or  Columbus  by  the  way  of 
Portage  City  to  the  St.  Croix  river  or  lake,  between  townships 
twenty -five  and  thirty-one,  and  from  thence  to  the  west  end  of 
Lake  Superior  and  to  Bayfield,  *  *  *  every  alternate  section 
of  land  designated  by  odd  numbers,  for  six  sections  in  width,  on 
each  side  of  the  road,"  *  *  *  and  "that  the  land  hereby 
granted  shall  be  exclusively  applied  in  the  construction  of  the  • 
railroad  for  which  it  is  granted  and  selected,  and  to  no  other  pur- 
pose whatsoever."  *  *  *  In  its  third  section  the  act  provides 
"  that  the  said  lands  hereby  granted  to  said  State  shall  be  subject 
to  the  disposal  of  the  legislature  thereof  for  the  purposes  aforesaid 
and  no  other."  And  in  its  fourth  section,  that  the  lands  -shall 
be  disposed  of  by  said  State  only  in  the  manner  following,  that 
is  to  say.  a  quantity  of  land  not  exceeding  one  hundred  and  twenty 
sections,  and  included  within  a  continuous  length  of  twenty  miles 
of  road,  may  be  sold  ;  and  when  the  governor  of  said  State  shall 
certify  to  the  Secretary  of  the  Interior  that  any  twenty  continu- 
ous miles  of  said  road  are  completed,  then  another  like  quantity 
of  land  hereby  granted  may  be  sold,  and  so  on  from  time  to  time 
until  said  road  is  completed,  and  if  said  road  is  not  completed" 
within  ten  years  no  further  sales  shall  be  made,  and  the  lands 
unsold  shall  revert  to  the  United  States." 

The  State  of  Wisconsin,  b}^  act  of  its  legislature,  accepted  the 
grant  thus  made,  and  assumed  the  execution  of  the  trust.  The 
route  of  the  road  was  surveyed,  and  a  ma])  of  its  location  was 
filed  in  the  land  office  at  Washington.  The  adjoining  odd  sec- 
tions within  the  prescribed  limits  were  then  withdrawn  from  sale 
by  the  proper  officers  of  the  government,  and  certified  lists  thereof, 
approved  ])y  tlie  Secretary  of  the  Interior,  were  delivered  to  the 
State. 

Subsequently,  on  the  5th  of  May,  1864,  Congress  passed  another 
act  on  the  same  subject,  entitled  "An  act  granting  lands  to  aid 
in  the .  construction  of  certain  railroads  in  the  State  of  AViscon- 
sin."  (13  Stat,  at  Large,  66.)  By  its  first  section  additional  land 
was  granted  to  the  State  upon  the  same  terras  and  conditions  con- 
tained in  the  previous  act,  for  tlie  j)urpose  of  aiding  in  the  con- 
struction of  a  railroad  from  a  point  on  the  St.  Croix  river  or  lake. 


358  SCHULBNBERG  V.  HaRRIMAN. 

between  township  twenty-five  and  thirty-one.  to  the  west  end  of 
Lake  Superior,  and  from  some  point  on  the  line  of  said  railroad, 
to  be  selected  by  the  State,  to  Bayfield,  and  the  time  for  the  com- 
pletion of  the  road,  as  mentioned  in  the  previous  act.  was  extended 
for  the  period  of  five  years  from  the  passage  of  the  last  act.  The 
State,  through  its  legislature,  accepted  this  grant  also. 

There  were  also  some  other  grants  made  by  the  act  for  other 
railroads. 

The  road  here  mentioned,  and  which  is  a  part  of  the  road  desig- 
nated in  the  act  of  1856.  has  never  been  constructed,  nor  has  any 
part  of  it  been  constructed,  and  Congress  has  not  passed  any  act 
since  1864,  extending  the  time  for  its  construction.  Nor  has 
Congress  passed  any  act,  nor  have  any  judicial  proceedings  been 
taken  by  any  branch  of  the  government,  to  enforce  a  forfeiture  of 
the  grants  for  failure  to  construct  the  road  within  the  jjeriod  pre- 
scribed. 

The  complaint  in  the  case,  alleged  property  and  right  of  pos- 
session in  the  plaintiffs.  The  answer,  among  other  matters, 
traversed  these  allegations. 

It  was  stipulated  by  the  parties  that  the  plaintiffs  were  in  the 
quiet  and  peaceable  possession  of  the  logs  at  the  time  of  their 
seizure  by  the  defendant,  and  that  such  possession  should  be  con- 
clusive evidence  of  title  in  the  plaintiffs,  against  evidence  of  title 
■  ill  a  stranger,  unless  the  defendant  should  connect  himself  with 
such  title  by  agency  or  authority  in  himself,  and  that  the  seizure 
of  the  property  by  the  defendant  was.  so  far  as  the  manner  of 
making  the  same  was  concerned,  valid  and  legal  in  all  respects, 
as  though  made  under  and  by  virtue  of  legal  process,  the  evident 
object  of  the  stipulation  being  to  test  the  right  of  the  parties  to 
the  property,  independent  of  the  manner  of  its  seizure. 

By  an  act  of  the  legislature  of  AVisconsin.  of  INI  arch  3d,  1865» 
the  governor  of  the  State  was  authorized  to  appoint  competent 
persons  as  agents  of  the  State,  whose  duty  it  was  made  to  pre- 
serve and  protect  the  timber  growing  upon  the  lands  granted  by 
the  acts  of  Congress,  and  to  take  into  possession,  on  behalf  of 
the  State,  any  logs  and  timber  which  might  be  cut  on  or  carried 
away  from  those  premises  witliont  la^jful  authority,  wherever  the 
same  might  be. 

The  evidence  showed  that  defendant  was  appointed  agent 
of  the  State  under  this  act.  and  that,  as  such  agent,  he  seized  the 
logs  for  which  the  present  action  was  brought :  that  the  logs  were= 


SCHULENBERG  V.  HaRRIMAN.  359 

duriiiij;  the  years  1870  and  1IS71.  tioated  from  the  places  where 
they  were  cut.  down  the  river  St.  Croix,  into  a  boom  at  Stillwater, 
in  the  State  of  IMinnesota,  and  were  there  intermingled  with  other 
logs  of  similar  character  and  marks,  belonging  to  the  plaintiffs, 
so  that  the  particular  logs  cut  on  the  lands  granted  to  the  State 
could  not  be  distinguished  from  logs  cut  on  other  lands  ;  that  the 
boom  from  which  the  defendant  seized  the  logs  in  suit,  was  two 
and  a  half  miles  long,  and  from  one  to  three-fourths  of  a  mile 
wide,  and  contained  about  three  hundred  millions  of  feet  of  pine 
logs  ;  that  the  defendant,  before  the  seizure,  demanded  of  the 
plaintiffs  the  logs  cut  on  the  lands  granted,  and  the  plaintiffs 
refused  to  deliver  them. 

The  defendant  contended,  in  support  of  the  seizure,  and  of  his 
right  to  tiie  possession  of  the  property — 

1st.  That  the  act  of  Congress  of  June  3d,  1856.  and  the  first 
section  of  the  act  of  May  5th,  1864.  passed  the  legal  title  to  the 
lands  designated  therein  to  the  State  of  Wisconsin,  in  trust  for 
the  construction  of  the  railroad  mentioned. 

2d.  That  the  lands  designated  have  not  re\'erted  to  the  United 
States,  althougli  the  road  was  not  constructed  >vitliin  the  period 
prescribed,  no  judicial  i)roceedings.  nor  any  act  on  tlie  part  of  the 
government,  having  been  taken  to  forfeit  the  grants. 

3d.  That  the  legal  title  to  the  lands  being  in  the  State,  it  was 
the  owner  of  the  logs  cut  thereon,  and  could  authorize  the  defend 
ant,  as  its  agent,  to  take  possession  of  tliem,  wherever  found  ;  and, 
4th.  That,  under  the  law  of  Minnesota,  the  plaintiffs  having 
mingled  the  logs  cut  by  them  on  the  lands  of  the  State,  with 
other  logs  belonging  to  them,  so  that  the  two  classes  could  not  be 
distinguished,  the  defendant  had  a  right,  after  demand  upon  the 
plaintiffs,  to  take  from  the  mass  a  quantity  of  logs  equal  to  those 
which  were  cut  on  the  lands  of  the  State. 

The  plaintiffs  controverted  these  several  positions,  and  con- 
tended, besides,  that  under  the  stipulation  of  the  parties,  and  the 
pleadings  in  the  case,  no  proof  of  title  in  the  State  was  admis- 
sible ;  and  that,  if  the  acts  of  Congress  vested  a  title  in  tiie 
State,  that  title  was  transferred  by  the  nineteenth  section  of  an 
act  of  its  legislature,  passed  March  10th,  1869,  to  the  St.  Croix 
and  Superior  Railroad  Companj',  a  corporation  then  created  for 
the  purpose  of  constructing  tiie  railroad  designated  in  those  acts. 
That  section  was  as  follows  : 

"  For  the  purpose  of  aiding  m  the  construction  of  the  railway  hereby 


360  SCHULENBERG  V    HaRRIMAN. 

incorporated,  the  State  of  Wisconsin  iiereby  transfers  unto  said  com- 
pany all  the  rights,  title,  interest,  and  estate,  legal  or  equitable,  now 
owned  by  the  State,  in  the  lands  heretofore  conditionally  granted  to  the 
St.  Cr(Mx  and  Superior  Railroad  Company,  for  the  construction  of  a  rail- 
road and  branches  ;  and  *  *  *  does  further  grant,  transfer  and  con- 
vey unto  the  said  railway  company  *  *  *  the  possession,  right,  title, 
interest,  and  estate  which  the  said  State  of  U  iseonsin  may  now  have,  or 
shall  hereafter  acquire  of,  in,  or  to  any  lands,  through  gift,  grant,  or 
transfer  from  the  United  States,  or  by  any  act  of  the  Congress  of  the 
United  States,  amending  'An  act  granting  a  portion  of  the  public  lands 
of  the  State  of  Wisconsin  to  aid  in  the  construction  of  a  railroad, 
approved  June  3d,  1856,'  and  the  act  or  acts  amendatory  thereof,  or  by 
any  future  acts  of  the  Congress  of  the  United  States,  granting  lands  to 
the  State  of  Wisconsin,  so  far  as  the  same  may  applj^  to,  and  in  the  con- 
struction of,  a  railroad  from  Bayfield,  in  the  county  of  Bayfield,  in  a 
southwesterly  direction,  to  the  intersection  of  the  mainline  of  the  North- 
ern Wisconsin  Railway,  from  the  lake  or  river  St.  Croix  to  Superior,  to 
have  and  to  hold  such  lands,  and  the  use,  possession,  and  fee  in  the  same? 
upon  the  express  condition  to  construct  the  herein  described  i"ailway 
within  the  several  terms  and  spaces  of  time  set  forth  and  specified  in  the 
next  preceding  section  of  this  act ;  and  upon  the  co/isu  iiclion  and  completion  of 
every  twenty  miles  of  said  i  ailway,  the  said  company  shall  acquire  the  fee 
simple  absohde  in  ana  to  all  that  portion  of  lands  graided.  to  this  State,  in  any 
of  the  icays  hereinbefore  described  by  the  Congress  of  the  United  States,  apper- 
taining to  that  portion  of  the  raihvay  so  constructed  and  completed.'' 

The  following  provisions  of  law  are  in  force  in  Minnesota, 
and  were  in  force  when  the  logs  in  suit  were  seized  by  the 
defendant : 

"Section  2.  In  cases  where  logs  or  timber  bearing  the  same  mark, 
but  belonging  to  different  owners  in  severalty,  have,  without  fault  of 
any  of  them,  become  so  intermingled  that  the  particular  or  identical  logs 
or  timber  belonging  to  each  cannot  be  designated,  either  of  such  owners 
may,  upon  a  failure  of  any  one  of  them,  having  possession,  to  make  a  just 
division  thereof,  after  demand,  bring  and  maintain  against  such  one  in 
possession  an  action  to  recover  his  proportionate  share  of  said  logs  or 
timber,  and  in  such  action  he  may  claim  and  have  the  immediate  delivery 
of  such  quantity  of  ^aid  logs  or  timber  as  shall  equal  his  said  share,  in  like 
manner  and  witli  like  force  and  effect  as  though  such  qiiantitj^  embraced 
his  identical  logs  and  timber  and  no  other  "  (Chapter  59,  General  Laws 
of  Minnesota,  approved  March  1st,  ISfio.) 

The  court  below  being  of  opinion  in  favor  of  the  defendant,  on 
the  different  points  raised,  he  obtained  judgment  that  he  recqver 
possession  of  the  property  which  had  been  replevied  from  him 
after  his  seizure  of  the  same,  or  the  sum  of  $16,809,  their  value 
and  costs.  To  reverse  this  judgment  the  plaintiff's  brought  the 
case  here  on  writ  of  error. 


SCHULENBERG  V.  HaRRI.MAN.  361 

Mr.  E.  C.  Palmer  for  the  plaintiff  in  error. 

I.  Under  the  pleadings  and  stipulation  evidence  of  title  in  the 
State  was  inadmissible.  {Anstice  \.  Holmes,  d 'Demo.,  24:4:  \  Harri- 
son V.  Mcintosh,  1  Johnson,  380;  Rogers  v.  Arnold,  12  Wendell, 
30  ;  Prosser  et  at.  v.  Woodward,  21  Wendell,  205  ;  3  Chitty's  Plea- 
dings, 1044,  title  "Replevin;"  General  Statutes  of  Minnesota, 
ch.  66.  §§  79,  133;  Coit  v.  Waples  et  al.,  1  Minnesota,  134; 
Finley  v.  Quirk,  9  Minnesota.  194.) 

When  the  defendant  in  replevin  claims  a  return  of  the  prop- 
erty replevied,  he  occupies,  as  to  his  own  title  or  claim,  the 
position  of  a  plaintiff.  (General  Statutes  of  Minnesota,  ch.  66, 
title  viii.  and  sec.  119.)  His  answer,  therefore,  should  set  up  the 
same  facts  substantially  which  would  be  required  in  a  complaint. 

II.  The  court  beloiv  improperly  held  that  the  legal  title  to  the 
lands  embraced  in  the  acts  of  Congress  of  June  dd,  1856.  and  May 
bth.  1864,  still  remained  in  the  State  of  Wisconsin. 

1.  The  acts  of  Congress  did  not  constitute  a  grant  in  presenti. 
The  State  acquired  under  them  only  a  permissive  right  to  dispose 
of  said  lands,  for  a  defined  purpose,  upon  complying  with  certain 
conditions  named  in  the  acts,  and  acquired  no  title  of  any  degree 
in  the  lands.  It  was  not  upon  the  theory  that  this  proposed  road 
was  a  State  need  that  this  appropriation  of  the  national  resources 
was  made,  but  upon  the  theory  that  it  was  a  national  need.  It  is 
true  the  State  of. Wisconsin  was  interested  in  the  results  of 
the  improvement,  but  the  national  policy  of  making  internal 
improvements  would  forbid  her  to  assert  that  she  was  more  than 
the  local  agent  of  the  federal  government  in  carrying  out  the 
object  of  this  appropriation.  The  purpose  and  end  of  the  grant 
do  not  require  the  construction  that  the  State  takes  the  legal  title 
in  pjresenti,  by  virtue  of  the  acts.  It  must  be  presumed  that 
Congress  in  passing  the  acts  considered  that  the  general  good 
would  be  best  subserved  by  such  application  of  a  portion  of  the 
public  lands,  and  so  made  provisions,  througli  the  agency  of  the 
States  and  their  representatives,  the  railroad  companies,  to  dis- 
pense, as  the  improvements  go  on.  the  fund  provided  to  further 
such  object. 

2.  It  is  a  general  rule  that  all  public  grants  are  to  be  construed 
strictly  and  in  favor  of  the  public,  and  that  nothing  passes  but 
what  is  granted  in  clear  and  explicit  terms.  {Rice  v.  Railroad 
Company,  1  Black,  380  ;  Mills  et  al.  v.  St.  Clair  County,  8  Howard, 
581  ;   Richmond  Railroad  \.  The  Louisa  Railroad,  13  Howard,  81  ; 


362  SCHULENBERU  V.   HaRRIMAN. 

Comm<))ui('<tJtl,  V.  The  Erie,  lS-c,  Railroad  Contpany.  27  Fenn- 
sylvaiiia  State,  339 ;  Dubuque,  <^c.,  Railroad  v.  Litchfield,  23 
Howard.  66-88  ;    United  States  v.  Arredondo,  6  Peters,  691.) 

3.  That  the  acts  of  Congress  were  not  per  se  a  grant  in  preseyiti 
to  the  State  of  all  the  lands  therein  described,  and  that  a  present 
right,  estate,  and  interest  in  the  same,  did  not  pass  by  the  terms 
of  the  acts,  is  settled  by  the  case  in  this  court  of  Rice  v.  Railroad 
Comixdiy  (1  Black.  376.)  There  the  matter  is  considered  in  the 
interpretation  of  the  grant  made  by  Congress  on  the  29th  of  June, 
1854,  to  the  Territory  of  Minnesota  ;  a  grant,  so  far  as  the  present 
question  is  concerned,  identical  with  this  one. 

Til.  If  the  title  passed  to  the  State  by  the  said  acts,  such  title 
reverted  to  the  United  States,  ho  part  of  the  road  haviia/  been  Ijuilt 
at  the  expindion  of  the  period  limited  in  the  r/rant.  {Rice  v.  Rail- 
road Co.,  1  Black,  381 :  United  States  v.  Wiggins,  14  Peters,  334  ; 
Buycl-  V.  United  St(des,  15  Peters.  215  :  O'Haru  et  al.  v.  United 
States.  15  Peters,  275;  Glenn  v.  United  States,  13  Howard.  250; 
Kennedy  et  al.  v.  Heirs  of  McCartney,  4  Porter,  141.) 

Here  was  a  grant  or  appropriation  of  part  of  the  public  domain 
for  a  defined  purj^ose,  upon  condition  that  such  purpose  should  be 
accomplished  within  a  time  limited.  It  was  founded  upon  no 
consideration,  unless  the  road,  in  aid  of  which  the  appropriation 
was  made,  should  be  built.  The  lands  could  not  be  sold  until 
certain  defined  portions  of  the  road  should  be  constructed  and  due 
proof  thereof  made  to  tire  Secretary  of  the  Interior.  At  the  expi- 
ration of  the  time  limited,  all  lands  not  patented  were  to  revert 
to  the  United  States. 

The  court  below  held  that  such  lands  did  not  i2)so  f<a-to  revert 
to  the  United  States  by  mere  failure  to  build  the  road  within  the 
period  prescribed  by  the  act  of  Congress  ;  and  that  to  effect  the 
forfeiture  some  act  on  the  part  of  the  general  government  evincing 
an  intention  to  take  advantage  of  such. failure  is  essential. 

This  position  is  met  in  72 ('ce  v.  Railroad  Company  already  cited. 
The  court  there  says  :  "Neither  of  the  sections  *  *  *  contain 
any  words  which  necessarily  and  absolutely  vest  in  the  territory  any 
beneficial  interest  in  the  thing  granted.  Undoubtedly  the  words 
employed  are  sufficient  to  have  that  effect,  and  if  not  limited  or 
restricted  by  the  context  or  other  parts  of  the  act,  they  would 
properly  receive  that  construction,  but  the  word  grant  is  not  a 
technical  word,  like  the  word  enfeoff,  and  although  if  used  broadly 
■without  limitation  or  restriction,  it  would  carry  an  estate  or  interest 


SCHULENBERG  V.   HaRRIMAN.  363 

in  the  tliiuj^  granted,  still  it  may  be  used  in  a  more  restricted  sense, 
and  be  so  limited  that  the  grantee  will  take  but  a  mere  naked  trust 
or  power  to  dispose  of  the  thing  granted  and  to  apply  the  jiroceeds 
arising  out  of  it  to  the  use  and  benefit  of  the  grantor.'' 

Indeed,  public  policy  demands  that  the  government  sliould  not 
be  required  to  take  any  step  in  order  to  place  lands  embraced  in 
sucii  public  acts,  as  are  now  under  consideration,  in  their  former 
condition,  at  the  precise  time  provided  in  the  act.  To  require  a 
judicial  declaration  of  forfeiture  would  clog  the  free  disjjosition 
of  the  public  lauds,  which  the  goverument  ought  at  all  times  to  be 
able  to  exercise  in  furtherance  of  the  public  interests.  And  it  is 
not  clear  how  or  where  such  proceeding  could  be  instituted,  or 
who  would  be  necessary  parties  thereto.  An  act  of  Congress,  or 
an  order  of  the  land  department  or  Secretary"  of  the  Interior, 
could  not  conclude  any  one  or  divest  title  previouslj^  vested. 

The  rule  as  sometimes  applied  to  private  grants  rests  upon  the 
principle,  that  such  grants  carry  the  fee  of  the  land,  and  the  right 
of  actual  occupancy  for  such  purposes  as  the  grantee  desires  to 
effect,  subject,  however,  to  certain  conditions,  which,  if  unper- 
formed, may  operate  as  a  defeasance.  ])rovided  the  grantor  shall 
re-enter  for  condition  broken;  that  the  title  or  interest  of. the 
grantee  is  an  estate  which  can  be  encumbered  or  transferred  by 
deed,  like  other  real  property,  and  cannot  be  diverted,  except  by 
judicial  proceedings  instituted  for  that  puri)ose. 

Under  the  act  of  1864  no  land  could  be  sold  until  twenty  miles 
were  constructed,  and  then  only  those  sections' which  were  coter- 
minus  with  the  constructed  line,  not  by  the  State,  but  by  the 
companies.  No  road  can  be  constructed  after  ten  years  under 
the  first  act.  nor  after  five  years  from  May  o,  1864,  under  the  - 
second.  Under  this  act  the  State  posesses  no  disposing  power 
over  the  lands  by  sale  or  conveyance.  Unless,  therefore,  the  State 
can  create  or  designate  certain  railroad  corporations  to  receive 
the  grant,  there  can  occur  no  contingency  in  whicii  the  State 
would  have  any  duty  to  perform  or  any  right  or  power  in  tlie 
premises.  Such  case,  irrespective  of  the  question  of  legal  title, 
bears  no  analogy  to  a  private  grant,  where  the  estate  and  power 
of  the  grantee  are  as  ample,  in  the  beginning  and  until  re-entry  or 
forfeiture  judicially  declared,  as  if  tlie  grant  contained  no  condi- 
tions whatever. 

IV.    //■  the  SUlU  (icqiih-cd  title  tiy  f],e  arts  nf  Comircss.  that  title 


364  ScHULENBERG  r.  Harriman. 

passed  under  the  legislation  of  t/ie  State,  in  lHfi;>.  to  a  corporation, 
incorporated  to  construct  the  road. 

The  nineteenth  section  of  the  act  of  JNIarch  10th,  1869  (quoted 
supra),  was  a  present  grant  of  the  interest  of  the  State.  The 
State  after  this  liad  no  ix)wer  to  protect  the  land  from  trespassers 
or  to  seize  the  timber  cut. 

V.  The  defendant  could  not  la /vf idly  seize  the  logs  in  controversy, 
because  they  coald  not  !)e  identifed  as  the  logs  cut  on  the  lands  of 
the  State. 

The  statute  of  JMinnesota  has  no  relation  to  the  action  of 
replevin,  and  cannot  avail  the  defendant  herein,  whatever  effect 
it  would  have  upon  the  measure  of  damages  in  an  action  of  trover. 
At  common  law.  the  rule  is  without  exception  in  replevin,  that  the 
property  must  be  identified,  or  the  action  will  not  lie. 

Messrs.  I.  C.  Sloan.  B.  -J.  Stevens,  and  /.  C.  Spooner  coidra. 

I.  Under  the  pleadings  it  was  competent  for  the  defendant  to 
prove  title  in  a  stranger,  and  in  that  way  to  defeat  the  plaintiffs. 
(Dermott  v.  Walluch,  1  Black,  96.)  Such  proof  went  directly  to 
meet  a  material  allegation  of  the  plaintiffs.  Proving  title  in  the 
State  of  Wisconsin,  "a  stranger"  would,  indeed,  under  the  stipu- 
lation, have  been  insufficient ;  but  when  after  proving  the  accept- 
ance by  the  State  of  the  grants,  sufficient  evidence  was  given  that 
the  defendant  had  been  the  agent  of  the  State  for  the  preservation 
and  protection  of  the  timber  growing  on  the  lands  embraced  in 
the  grants,  and  that  he  had  authority  to  so  protect  them ;  that 
his  seizure  and  possession  of  the  logs  in  controversy  were  as  such 
agent,  and  under  the  authority  given  him  by  the  State  of  Wiscon- 
sin, pursuant  to  its  laws,  it  -connected  the  defendant  with  such 
title  by  competent  evidence  of  authority  or  agency  in  himself." 
The  evidence  was  thus  competent  under  the  pleading,  material  to 
the  issues,  strictly  proper  in  itself,  and  in  literal  fulfillment  of  the 
stipulation. 

II.  That  the  acts  of  Congress  vested  an  estate  in  presenti  is 
proved  by  Rutherford  v.  Greene's  Heirs,  2  Wheaton,  196  ;  Lessieur 
V.  Price.  12  Howard,  59,  and  by  other  cases.  {United  States  v. 
Perchenian.  7  Peters.  51  ;  Mitchell  v.  United  States,  9  Peters,  711 ; 

United  States  v.   Brooks,  10  Howard.  442  ;  Ladiga  v.   Roland,  2 
Howard,  581.) 

In  Rice  v.  Railroad  Company,  the  act  which  it  was  said  made 
the  grant,  unlike  the  act  of  1856,  which  made  the  grant  here,  in 


SCHULENBERG  V.   HaRRIMAN.  365 

terms  provided  that  the  title  should  not  i:e.st  until  the  road,  or  por- 
tions tliereof,  were  built.  Tliat  grant  was  repealed  by  Congress 
before  any  disposition  of  it  fjecame  operatire.  and  it  was  held  by 
a  majority  of  this  court  that  the  act  vested  in  the  territory  "  a 
mere  naked  trust  or  power  to  dispose  of  the  hinds  in  the  manner 
therein  specified."  and  until  the  power  was  in  fact  executed  was 
the  subject  of  repeal :  but  that  if  the  clause  providing  that  the 
title  should  not  vest.  &c.,  had  been  omitted,  it  would  have  tjeen 
similar  to  the  srant  considered  in  Le.s.sieiir  v.  Price,  and  been  "f( 
'present  (jrunt."  The  case  is  plainly  distinguishable  from  ours, 
and  in  fact  accords  with  the  judgment  below. 

III.  It  is  argued  in  effect  that  the  words  in  the  act  -shall  revert 
to  the  United  States,"'  were  intended  as  a  declaration  of  forfeiture 
in  advance  ;  but  until  forfeiture  has  been  incurred  it  is  not  com- 
petent for  the  legislature  to  declare  it.  because  the  legislature 
cannot  know  in  advance  whether  or  not  it  may  not  wish  to  waive 
the  forfeiture.  The  words  are  merely  definitive  of  the  condition 
for  the  non-performance  of  whicli  the  legislature  may  thereafter 
declare  a  forfeiture,  and  are  to  be  construed  in  connection  with 
the  whole  act.  and  in  the  light  of  the  objects  to  be  accomplished 
thereby. 

In  the  case  of  United  States  v.  Repentigny.  5  Wallace,  267,  the 
corresponding  words  were,  "  and  that  in  default  thereof  the  same 
shall  be  reunited  to  his  Majesty's  domain" — words  equallj'  im- 
perative with  those  of  the  act  in  question — and  yet  thej^  were  held 
not  to  be  a  declaration  of  forfeiture,  but  as  definitive  of  the  con- 
dition merely. 

Even  where  the  condition  provides  that  the  estate  shall  be  void 
on  non-performance,  the  estate  is  not  defeated  without  some  act 
or  declaration  of  the  grantor.  {Sneed  v.  Ward,  5  Dana.  187  : 
Crass  v.  Coleruan.  6  Dana.  446.)  This  is  one  of  the  most  ancient 
principles  of  tlie  common  law,  assumed  as  settled  in  cases  reported 
as  far  back  as  Leonard,  Sir  Francis  Moore,  Plowden,  Coke  and 
Croke,  {Sir  Moyle  Finch's  Case,  2  Leonard.  143 ;  same  case. 
Moore,  2i)6 ;  Willion  v.  Berkley,  1  Plowden.  229 ;  Sir  George 
ReyneVs  Case,  9  Reports,  96,  b;  Parslotc  v.  Corn,  Croke,  Eliz., 
855),  vouching  the  Year  Books,  and  affirmed  by  many  modern 
decisions.  {Railroad  Company  v.  Smitli,  9  "Wallace,  95  ;  Ilornsbj 
V.  United  States,  10  Wallace,  224  ;  Maricick  v.  Andrews,  25  Maine, 
525  :  Guild  v.  Richards.  16  Gray,  309  :  United  States  v.  Repentigny, 
5  Wallace.  267  ;  Fairfax's  Devisee  v.  Hunters  Lessee.  7  Cranch, 


366  SCIIULENBERG  ?'.   UaRRIMAN. 

631  ;  Smith  v.  Maryhmd.  G  C'ranch,  286  ;  Little  v.  Watson,  32 
Maine.  214;  People  v.  Brown,  1  Craine's  Reports,  416;  Nicoll  v. 
Neio  York  and  Erie  Railroad  Co..  12  New  York,  121  ;  Osgood  v. 
Abbott,  58  INIaine.  73  ;  Sneed  v.  Ward,  5  Dana,  1H7  :  Cross  v. 
Coleman,  6  Dana.  448  :  Tovle  v.  Si/^iY//.  2  Robertson's  New  York, 
489  ;  Duncan  v.  5earr?. ,')  Sonth  Carolina  (2  Nott  &  IVIcCord).  405  ; 
Willmr  V.  Tolwy,  16  Piokerin.o;,  177  ;  Thompson  v.  Bright,  1  Gush- 
ing, 428  :  Fremont  v.  6^Mt<e(/  N^a^r^s.  17  Howard,  560.)  In  the  case 
of  an  individual  it  is  by  entry  :  in  the  ease  of  the  government  by 
office  found. 

As  Congress  is  tiie  grantor  in  the  case  at  bar,  and  has  sole 
authority  to  dispose  of  the  public  domain  by  grant,  Congress 
alone  can  declare  the  intention  to  enforce  the  forfeiture.  As  held 
by  the  court  in  United  States  v.  Repentigny,  supra,  an  act  of  Con- 
gress is  an  equivalent  for  office  found.  The  election  to  waive  the 
forfeiture  or  to  enforce  it  rests  with  Congress.  It  is  a  question  of 
intention,  and  no  department  of  the  government,  either  the  execu- 
tive or  judicial,  can  know  what  the  pleasure  of  Congress  may  be, 
and  cannot,  therefore,  treat  the  title  to  the  lands  as  revested  until 
Congress  has  declared  its  intention  in  that  regard. 

This  court  will  take  judicial  notice  of  the  proceedings  of  Con- 
o-ress.  and  therefore  we  refer  to  the  facts  that  on  two  or  more 
occasions  Congress  has  refused  to  declare  and  enforce  the  for- 
feiture of  the  grant  in  question  ;  that  bills  having  passed  the 
House  were  rejected  in  the  Senate,  showing  an  intention  on  the 
part  of  Congress  to  waive  a  forfeiture,  if  one  has  in  fact  been 
incurred. 

We  may  also  refer  to  the  fact  that  more  than  two-thirds  of  the 
line  of  railroad  authorized  by  the  act  of  June  3d,  1856,  has  been 
constructed,  is  recognized  and  shown  by  various  acts  of  Congress. 

Conditions  subsequent  are  not  favored  in  law,  and  are  con- 
strued strictly.  {United  States  v.  Repentigny,  5  Wallace,  267; 
Emerson  v.  Simp)son,  43  New  Hampshire,  475  ;  Hooper  v.  Cum- 
mings,  45,  Maine,  359.) 

IV.  The  act  of  the  legislature  of  Wisconsin  of  March  10th, 
1869,  did  not  transfer  the  title  to  the  lands  from  the  State  to  the 
railroad  company  in  the  way  alleged  by  opposing  counsel. 

1,  The  State  could  only  dispose  of  the  lands  in  the  manner 
provided  by  the  act  of  Congress  of  June  3d,  1856 — that  is,  as 
fast  as  the  railroad  was  constructed.  It  was  thus  a  trustee,  with 
power  of  disposal  limited  l)y  the  act  creating  the  trust. 


SCHULENBERf^  V.   HaRRTMAN.  367 

2.  The  coiu'liulin^r  terms  of  section  nineteen  (italicized  supra) 
are  to  he  construed  witli  tliat  earlier  portion  of  the  section, 
which  nii<):ht  be  sufficient  in  form  to  convey  a  present  title,  and 
modifies  and  limits  its  operation.  The  s])ecific  declaration  as  to 
the  time  when  the  title  in  fee  should  vest  is  etiuivalent  to  a  [pro- 
vision that  the  fee  shall  not  vest  except  as  the  road  is  constructed. 
{Rice  V.  Railroail,  1  Black,  358.) 

V.  The  last  point  made  by  opposing  counsel  is  answere<l  by 
the  statute  of  ]Minnesota.  whose  words  are  too  plain  to  be  mis- 
construed. 


Mk.  JrsTicE  Field,  after  stating  the  facts  of  the  case,  delivered 
the  opinion  of  the  court,  as  follows  : 

The  position  of  the  plaintiffs,  that  under  the  stipulation  of  the 
parties  and  the  pleading,  no  proof  of  title  in  the  State  to  the  logs 
in  controversy  was  admissible,  cannot  be  sustained.  The  com- 
plaint alleges  property  and  right  of  possession  in  the  plaintiffs  : 
the  answer  traverses  directly  these  allegations,  and  under  the 
issue  thus  formed  any  evidence  was  admissil)le  on  the  part  of 
the  defendant  which  went  to  show  that  the  plaintiff  had  neither 
property  nor  I'ight  of  possession.  Evidence  of  title  in  the  State 
would  meet  directly  the  averment,  upon  proofof  which  the  plaintiffs 
could  alone  recover ;  and  the  sti[)ulation  was  evidently  framed 
upon  the  supposition  that  title  in  the  State — for  there  was  no 
other  stranger — would  be  offered,  and  it  provided  for  the  incon- 
clusivenessof  the  evidence  against  the  possession  of  the  plaintiff's 
unless  the  defendant  connected  himself  with  the  title.  The  ad- 
mitted quiet  and  peaceable  possession  of  the  property  by  the 
plaintiffs  at  the  time  of  the  seizure  was  prima  facie  evidence  of 
title,  and  threw  the  burden  upon  the  defendant  of  establishing 
the  contrary. 

The  position  that  if  the  acts  of  Congress  vested  in  the  State  a 
title  to  the  lands  designated,  that  title  was  transferred  by  tlie  act 
of  its  legislature,  passed  March  10th,  1869,  is  equally  untenable. 
The  State  by  the  terms  of  the  grants  from  Congress  possessed  no 
authority  to  dispose  of  the  lands  beyond  one  hundred  and  twenty 
sections,  except  as  the  road,  in  aid  of  which  the  grants  were  made, 
was  constructed. 

The  company  named  in  the  act  never  constructed  any  portion 
of  such  road,  and  there  is  no  evidence  that  the  State  ever  exercised 


368  SCHULENBERG  V.  HaRRIMAN. 

the  power  to  sell  the  one  hundred  and  twent}'^  sections  authorized 
in  advance  of  such  construction. 

The  acts  of  Congress  made  it  a  condition  precedent  to  the  con- 
veyance by  the  State  of  any  other  lands,  that  the  road  should  be 
constructed  in  sections  of  not  less  than  twenty  consecutive  miles 
each.  No  conveyance  in  violation  of  the  terms  of  those  acts, 
the  road  not  having  been  constructed,  could  pass  any  title  to  the 
compau}'. 

Besides,  it  is  evident,  notwithstanding  the  words  of  transfer  to 
the  company  contained  in  the  first  part  of  the  ninteenth  section 
of  the  act  of  the  State,  that  it  was  not  the  intention  of  the  State 
that  the  title  should  pass  except  upon  the  construction  of  the 
road.  Its  concluding  language  is  that  •  upon  the  construction 
and  completion  of  every  twenty  miles  of  said  railway  the  said 
company  shall  acquire  the  fee  simple  absolute  in  and  to  all  that 
portion  of  the  land  granted"  to  the  State  appertaining  to  the 
portion  of  the  railwa}-  so  constructed  and  completed. 

We  proceed,  therefore,  to  the  consideration  of  the  several 
grounds  upon  which  the  defendant  justifies  his  seizure  of  the  logs 
in  controversy,  and  claims  a  return  of  them  to  him. 

1.  That  the  act  of  Congress  of  June  3d,  1856,  passed  a  present 
interest  in  the  lands  designated  there  can  be  no  doubt.  The 
language  used  imports  a  present  grant  and  admits  of  no  other 
meaning.  The  language  of  the  first  section  is,  "that  there  he, 
and  is  hereby,  granted  to  the  State  of  Wisconsin"  the  lands  speci- 
fied. The  third  section  declares  "  that  the  said  lands  hereby  gra  nted 
to  said  State  shall  be  subject  to  the  disposal  of  the  legislature 
thereof;"  and  the  fourth  section  provides  in  what  manner  sale 
shall  be  made,  and  enacts  that  if  the  road  he  not  completed  within 
ten  years  •'  no  further  sale  shall  be  made,  and  the  lands  unsold 
shall  revert  to  the  United  States."  The  power  of  disposal  and 
the  provision  for  the  lands  reverting  both  imply  what  the  first 
section  in  terms  declares,  that  a  grant  is  made,  that  is,  that  the 
title  is  transferred  to  the  State.  It  is  true  that  the  route  of  the 
railroad,  for  the  construction  of  which  the  grant  was  made,  was 
yet  to  be  designated,  and  until  such  designation  the  title  did  not 
attach  to  any  specific  tracts  of  land.  The  title  passed  to  the 
sections,  to  be  afterwards  located  ;  when  the  route  was  fixed  their 
location  became  certain,  and  the  title,  which  was  previously 
imperfect,  acquired  precision  and  became  attached  to  the  land. 

In  the  case  of  Rutherford  v.   Greene's  Heirs,  reported  in  the 


SCIIULENBERG  V.  HaRRIMAN.  369 

secoDcl  of  Wlieaton,  a  similai*  construction  was  given  by  this  court 
to  an  act  of  North  Carolina,  passed  in  1782,  which  provided  that 
twent3^-five  thousand  acres  of  land  should  be  allotted  and  given 
to  General  Greene  and  his  heirs  within  the  limits  of  a  tract 
reserved  for  the  use  of  the  arm}',  to  be  laid  off  by  commissioners 
appointed  for  that  purpose.  The  commissioners  pursuant  to  the 
directions  of  the  act  allotted  the  twenty-five  thousand  acres  and 
caused  the  quantity  to  be  surveyed  and  the  survey  to  be  returned 
to  the  proper  office,  and  the  questions  raised  in  the  case  related  to 
tlf»  validity  of  the  title  of  General  Greene,  and  the  date  at  which 
it  commenced.  The  court  held  that  the  general  gift  of  twenty- 
five  thousand  acres  Ijnng  in  the  territor}'  reserved,  became  by  the 
survey  a  particular  gift  of  the  quantitj^  contained  in  the  survey, 
and  concluded  an  extended  examination  of  the  title,  by  stating 
that  it  was  the  clear  and  unanimous  opinion  of  the  court,  that 
the  act  of  1782,  vested  a  title  in  General  Greene  to  the  twenty- 
Aa'C  thousand  acres  to  be  laid  off  within  the  bounds  designated, 
and  tliat  the  survey  made  in  pursuance  of  the  act  gave  precision 
to  that  title  and  attached  it  to  the  land  surveyed. 

On  the  6th  of  March,  1820,  Congress  passed  an  act  for  the 
admission  of  Missouri  into  the  Union,  and  among  other  regula- 
tions to  aid  the  new  State,  enacted,  '-that  four  entire  sections  of 
land  be,  and  the  same  are  hereby  granted  to  said  State  for  the 
purpose  of  fixing  the  seat  of  government  thereon,  which  said 
sections  shall,  under  the  direction  of  the  legislature  of  said  State, 
be  located  as  near  as  may  be  in  one  bod3%  at  any  time,  in  such 
townships  and  ranges  as  the  legislature  aforesaid  maj^  select,  on 
any  of  the  public  lands  of  the  United  States."  In  Lessieur  v. 
Price,  reported  in  the  twelfth  of  Howard,  the  operation  of  this 
act  was  considered  ;  and  the  court  said  : 

••  Tlie  land  was  granted  by  the  act  of  1820;  it  was  a  present 
grant,  wanting  identity  to  make  it  perfect ;  and  the  legislature  was 
vested  with  full  power  to  select  and  locate  tlie  land  :  and  we  need 
only  here  say,  what  was  substantialh'  said  b}'  the  conrt  in  the  case 
of  Rutherford  v.  Greene's  Heirs,  tliat  the  act  of  1820  vested  a 
title  in  the  State  of  Missouri  of  four  sections ;  and  that  the 
selection  made  by  the  State  legislature  pursuant  to  the  act  of 
Congress,  and  the  notice  given  of  such  location  to  the  surveyor 
general  and  the  register  of  the  local  district  where  the  land  lay, 
gave  precision  to  the  title,  and  attached  to  it  the  land  selected. 

24 


370  SCHULENBERG  V.   HaRRIMAN. 

The  United  States  assented  to  this  mode  of  proceeding  ;  nor  can 
an  individual  call  it  in  question.*" 

Numerous  other  decisions  might  he  cited  to  the  same  purport. 
They  establish  the  conclusion  that  unless  there  are  other  clauses 
in  a  statute  restraining  the  operation  of  words  of  present  grant, 
these  must  be  taken  in  their  natural  sense  to  import  an  immediate 
transfer  of  title,  although  subsequent  proceedings  may  be  required 
to  give  precision  to  that  title  and  attach  it  to  specific  tracts.  No 
individual  can  call  in  question  the  validity  of  the  proceedings  by 
which  precision  is  thus  given  to  the  title,  where  the  United  States 
are  satisfied  with  them. 

The  rules  applicable  to  private  transactions,  which  regard  grants 
of  future  application— of  lands  to  be  afterwards  designated — as 
mere  contracts  to  convey,  and  not  as  actual  conveyances,  are 
founded  upon  the  common  law,  which  requires  the  possibility  of 
present  identification  of  property  to  the  validity  of  its  transfer. 
A  legislative  grant  operates  as  a  law  as  well  as  a  transfer  of  the 
property,  and  has  such  force  as  the  intent  of  the  legislature 
requires. 

The  case  of  Rice  y.  Railroad  Company,  reported  in  the  first  of 
Black,  does  not  conflict  with  these  views.  The  words  of  present 
grant  in  the  first  section  of  the  act  there  under  consideration  were 
restrained  by  a  provision  in  a  subsequent  section,  declaring  that 
the  title  should  not  vest  in  the  Territory  of  Minnesota  until  the 
road  or  portions  of  it  were  built. 

The  grant  of  additional  land  by  the  first  section  of  the  act  of 
Congress  of  1864  is  similar  in  its  language  and  is  subject  to  the 
same  terms  and  conditions  as  the  grant  by  the  act  of  1856.  With 
the  other  grants,  made  by  the  act  of  1864,  we  are  not  concerned 
in  the  present  case. 

2.  The  provision  in  the  act  of  Congress  of  1856.  that  all  lands 
remaining  unsold  after  ten  years  shall  revert  to  the  United  States, 
if  the  road  be  not  then  completed,  is  no  more  than  a  provision 
that  the  grant  shall  be  void  if  a  condition  subsequent  be  not  per- 
formed. In  Sheppard's  Touchstone,  it  is  said  :  "If  the  words  in 
the  close  or  conclusion  of  a  condition  be  thus  :  that  the  land  shall 
return  to  the  enfeoffer,  &c.,  or  that  he  shall  take  it  again  and  turn 
it  to  his  own  profit,  or  that  the  land  shall  revert,  or  that  the  feoffer 
shall  recipere  the  land,  these  are,  either  of  them,  good  words  in  a 
condition  to  give  a  re-entry — as  good  as  the  word  '  re-enter ' — 


SCHULENBERG  V.   HaRRIMAN.  371 

and  by  these  words  the  estate  will  lie  made  conditional."     (Shep- 
pard's  Touchstone,  125.) 

The  prohibition  against  further  sales,  if  the  road  be  not  com- 
pleted within  the  period  prescribed,  adds  nothino;  to  the  force  of 
the  provision.  A  cessation  of  sales  in  that  §vent  is  implied  in 
the  condition  that  the  lands  shall  then  revert,  if  the  condition  be 
not  enforced  the  power  to  sell  continues  as  before  its  breach,  lim- 
ited onl}^  by  the  objects  of  the  grant  and  the  manner  of  sale  pre- 
scribed in  the  act. 

And  it  is  settled  law  that  no  one  can  take  advantage  of  the 
non-performance  of  a  condition  subsequent  annexed  to  an  estate 
in  fee,  but  the  grantor  or  his  heirs,  or  the  successors  of  the  grantor 
if  the  grant  proceed  from  an  artificial  person ;  and  if  they  do  not 
see  fit  to  assert  their  right  to  enforce  a  forfeiture  on  that  ground, 
the  title  remains  unimpaired  in  the  grantee.  The  aiithorities  on 
this  point,  with  hardly  an  exception,  ai-e  all  one  way  from  the 
Year  Books  down.  And  the  same  doctrine  obtains  where  the 
grant  upon  condition  proceeds  fi'om  the  government ;  no  individual 
can  assail  the  title  it  has  conveyed  on  the  ground  that  the  grantee 
has  failed  to  perform  the  conditions  annexed.  (Sheppard's  Touch- 
stone, 149;  Nicoll  \.  Netv  York  and  Erie  Railroad  Company,  12 
New  York,  121  ;  People  v.  Brown,  1  Caines'  Reports,  416  ;  United 
States  V.  Repentigny,  5  AVallace,  267  ;  Dewey  v.  Williams,  40  New 
Hampshire,  222  ;  Hooper  v.  Cummings,  45  Maine,  359  ;  Southard 
V.  Central  Railroad  Company,  2  Dutcher,  13.) 

In  what  manner  the  reserved  right  of  the  grantor  for  breach  of 
the  condition  must  be  asserted  so  as  to  restore  the  estate,  depends 
upon  the  character  of  the  grant.  If  it  be  a  private  grant,  that 
right  must  be  asserted  by  entr}^  or  its  equivalent.  If  the  gi-ant 
be  a  public  one,  it  must  be  asserted  by  judicial  proceedings 
authorized  bj'  law,  the  equivalent  of  an  inquest  of  office  at  com- 
mon law,  finding  the  fact  of  forfeiture  and  adjudging  the  restora- 
tion of  the  estate  on  that  ground,  or  there  must  be  some  legisla- 
tive assertion  of  ownership  of  the  property  for  breach  of  the  con- 
dition, such  as  an  act  directing  the  possession  and  approi)riation 
of  the  propert3%  or  that  it  be  offered  for  sale  or  settlement.  At 
common  law  the  sovereign  could  not  make  an  entry  in  person, 
and,  therefore,  an  office-found  was  necessary  to  determine  the 
estate,  but,  as  said  by  this  court  in  a  late  case.  •'  the  mode  of 
asserting  or  of  resuming  the  forfeited  grant  is  subject  to  the  leg- 
islative authority  of  the  government.     It  may  be   after  judicial 


372  SCHULENBERG  V.   HaRRIMAN. 

investigation,  or  by  taking  possession  directly  under  tlie  anthority 
of  the  government  without  these  preliminary  proceedings.  {United 
St>if,'s  V.  R(',H'uti(juy,  o  Wallace,  211.  268  ;  and  see  Fincli  v.  Riseley, 
Papham,  53.)  In  the  present  case  no  action  has  been  taken  either 
by  legislation  or  judicial  proceedings  to  enforce  a  forfeiture  of 
the  estate  granted  by  the  acts  of  1856  and  1864.  The  title 
remains,  therefore,  in  the  State  as  completely  as  it  existed  on  the 
day  when  the  title  by  location  of  the  route  of  the  railroad  acquired 
precision  and  became  attached  to  the  adjoining  alternate  sections. 

3.  The  title  to  the  land  remaining  in  the  State,  the  lumber  cut 
upon  the  land  belonged  to  the  State.  Whilst  the  timber  was 
standing  it  constituted  a  part  of  the  realty ;  being  severed  from 
tl»e  soil  its  character  was  changed  ;  it  became  personalty,  but  its 
title  was  not  affected  ;  it  continued  as  previously  the  property  of 
the  owner  of  the  land,  and  could  be  pursued  wherever  it  was  car- 
ried. All  the  remedies  were  open  to  the  owner  which  the  law- 
affords  in  other  cases  of  the  wrongful  removal  or  conversion  of 
personal  property. 

4,  The  logs  cut  from  the  lands  of  the  State  without  license, 
having  been  intermingled  by  the  plaintiffs  with  logs  cut  from 
other  lands,  so  as  not  to  be  distinguishable,  the  owner  was  entitled, 
under  the  legislation  of  Minnesota,  and  the  decision  of  her  courts, 
to  replevy  from  the  whole  mass  an  amount  equal  to  those  cut  by 
the  plaintiffs,  and  the  stipulation  of  the  parties  provides  that  the 
seizure  by  the  defendant,  so  far  as  the  manner,  of  making  the 
same  is  concerned,  was  as  valid  and  legal  in  all  respects  as  though 
made  under  and  by  virtue  of  legal  process.  The  remedy  thus 
afforded  by  the  law  of  JMinnesota  is  eminently  just  in  its  ope- 
ration, and  is  less  severe  than  that  which  the  common  law  would 
authorize. 

We  perceive  no  error  in  the  rulings  of  the  court  below,  and  the 
judgment  is,  therefore.  Affirmed. 

XoTK.— Also  sec.  Tucker  v.  Ferguson.^  '2'>  Wallace,  527  ;  Farnswoiih  v. 
Railroad  Compaut/.  2  Otto,  49  ;  Chamberlain  v.  Railroad  Company,  2  Otto. 
290;  Railroad  Company  \.  Dyer,  1  Sawyer,  641  ;  Railroad  Company  \.  Teiiis, 
41  Cab,  489  ;  Johnson  v.  Ballon,  28  ^lich.,  379. 


Railroad  Land  Company  r.  Courtrkjiit.  373 

Raimjoad  Laxd  Co.mi'Axy   /•.  CoTirjuioiiT. 
October  'I'erm,  1874.— 21  Wallace,  310. 

On  the  loth  of  May,  1856,  Congress  passed  an  act  entitled  ''An  act 
makuig  a  grant  of  lands  to  the  State  of  Iowa,  in  alternate  sections, 
to  aid  in  the  construction  of  certain  railroads  in  said  State."  (11 
Stat,  at  Large,  9)  That  act  granted  to  the  State  for  the  purpose  of 
aiding  in  the  construction  of  a  railroad  between  certain  specilied 
places,  alternate  sections  of  land,  designated  by  odd  numbers,  for 
six  sections  in  width  on  each  side  of  the  road,  to  be  selected  witliin 
fifteen  miles  therefrom.  And  the  act  declared  tliat  the  lands  thus 
granted  should  be  exclusively  applied  to  the  construction  of  the  road, 
and  be  subject  to  the  disposal  of  the  legislature  for  that  purpose  and 
no  other,  and  only  in  the  manner  following,  that  is  to  say,  a  quajitity 
of  land  not  exceeding  one  hundred  and  twenty  sections,  and  included 
within  a  continuous  length  of  twenty  miles  of  the  road,  might  be 
sold;  and  when  the  governor  of  the  State  should  certify  to  the 
Secretary  of  the  Interior  that  any  continuous  twenty  miles  of  the 
road  were  completed,  then  another  like  quantity  of  the  land  granted 
might  be  sold,  and  so,  from  time  to  time,  until  tlie  road  was 
completed. 

The  State  of  Iowa,  by  act  of  its  legislature,  passed  on  the  14th  of  July, 
18-56,  accepted  the  grant  thus  made,  and  provided  for  the  execution  of 
the  trust.  By  that  act  the  State  granted  to  the  Iowa  Central  Air-line 
Railroad  Company,  a  corporation  created  by  its  legislature  for  the 
construction  of  the  railroad,  "the  lands,  interests,  rights,  powers,  and 
privileges"  conferred  by  the  act  of  t'ongress,  upon  tlie  express  con- 
dition, however,  tiuit  in  case  the  company  should  fail  to  have  com- 
pleted and  equipped  seventy-five  miles  of  the  road  within  three 
years  from  the  1st  day  of  December  then  next  following,  and  thirty 
miles  in  addition  in  each  year  thereafter  for  five  years,  and  the 
remainder  of  its  whole  line  in  one  year  thereafter,  or  on  the  1st  of 
December,  1805,  then  it  .should  be  competent  for  the  State  to  resume 
"all  rights  to  the  lands  conferred  by  the  act,  remaining  undisposed  of 
by  the  company.  The  company  accepted  the  grant  from  the  State, 
With  its  conditions,  and  immediately  thereafter  caused  a  survey  and 
location  of  the  line  of  the  road  to  be  made,  a  map  of  which  was  filed 
in  the  proper  offices  in  the  State  and  at  Washington. 
During  the  years  of  1857  and  1858  the  company  performed  a  large  amount 
of  grading  upon  the  road,  and  sold  one  hundred  and  twenty  secti  ais 
of  the  land  granted,  a  portion  of  them  to  the  contractor  who  graded 
the  road,  which  sections  were  selected  within  a  continuous  twenty 
miles  of  the  line  of  the  road.  The  selections  were  approved  by  tiie 
Secretary  of  the  Interior,  and  the  sections  were  certified  b.y  him  to 
the  State.  Those,  howevex",  selected  were  not  from  lands  lying 
along  tlie  eastern  end  of  the  road,  as  they  might  have  been,  but  from 
lands  lying  further  west.     Althougli  the  company  did  a  large  amount 


374  Railroad  Land  Company  v.  Courtright. 

of  grading,  it  never  completed  any  part  of  the  road,  and  in  March, 
18(50,  the  legislatnro  of  Towa  rosnined  the  lands,  interests,  rights, 
powers,  and  privileges  conferred  npon  the  company,  and  repealed 
tlie  clauses  of  the  act  granting  tliem.     Held — 

1st.  That  the  act  of  Congress  authorized  a  sale  of  one  hundi'ed  and 
twenty  sections  in  advanc(!  of  the  construction  of  any  part  of  the 
road,  and  that  it  was  onlj^  as  to  the  sale  of  the  remaining  sections 
that  tlie  provision  requiring  a  previous  completion  of  twenty  miles 
applied ; 

2d.  I'hat  there  was  no  restriction  npon  tlie  State  as  to  the  place  where 
the  one  hundred  and  twenty  sections  should  be  selected  along  the 
line  of  the  road,  except  that  they  should  be  included  within  a  con- 
tinuous length  of  twentj^  miles  on  each  side  ;  and  that  thej'  might 
be  selected  from  lauds  adjoining  the  eastern  end  of  the  road  or  the 
western  end,  or  along  the  central  portion ; 

3d.  That  the  company  mentioned  in  the  act  of  the  State  of  July  14th, 
IH.iB,  took  the  title  and  interests  of  the  State  upon  the  terms,  condi- 
tions, and  restrictions  expressed  in  the  act  of  Congress,  and  that  the 
further  conditions  as  to  the  completion  of  the  road  imposed  by  the 
State  were  conditions  subsequent ;  and — 

4th.  That  the  purchasers  of  the  one  hundred  and  twenty  sections  took  a 
good  title  to  the  property,  although  no  part  of  the  road  was  con- 
structed at  the  time. 

Error  to  the  Supreme  Court  of  Iowa. 

On  the  31st  of  January.  1870,  Milton  Courtright  brought,  in  a 
district  court  in  the  State  of  Iowa,  an  action  against  the  Iowa 
Railroad  Land  Company  for  the  possession  of  certain  real  prop- 
erty situated  in  that  State,  being  part  of  the  hinds  embraced  in 
the  act  of  Congress  approved  May  1.5th.  1856.  (An  act  entitled 
"An  act  making  a  grant  of  lands  to  the  State  of  Iowa,  in  alternate 
sections,  to  aid  in  the  construction  of  certain  railroads  in  said 
State."     11  Stat,  at  Large,  9.) 

That  act  granted  to  the  State,  for  the  })urpose  of  aiding  in  the 
construction  of  a  railroad  from  Lyons  City,  in  that  State,  north- 
westerly, to  a  point  of  intersection  with  tlie  main  line  of  the  Iowa 
Central  Air-line  Railroad,  near  INIaquoketa,  and  thence  to  the 
Missouri  river,  alternate  sections  of  land,  designated  by  odd 
numbers,  for  six  sections  in  width  on  each  side  of  the  road,  to  be 
selected  within  fifteen  miles  tlierefrom,  with  a  provision  that  if  it 
should  appear,  when  the  route  of  the  road  was  definitely  fixed, 
that  the  United  States  had  sold  of  the  lands  thus  designated  any 
sections  or  parts  of  sections,  or  the  right  of  pre-emption  had 
attached  to  them,  other  lands  of  equal  quantity  in  alternate  sec- 


Railroad  Land  Company  v.  Courtright.  375 

tions  might  be  selected  from  adjoinino-  lands  of  the  United  »States. 
And  the  act  declared  that  the  lands  thus  granted  should  be  exclu- 
sivel}'  applied  to  the  construction  of  the  road,  and  ])e  suliject  to 
the  disposal  of  the  legislature  for  that  purpose  and  no  other,  and 
only  in  the  manner  following,  that  is  to  say,  a  quantity  of  land, 
not  exceeding  one  hundred  and  twentj^  sections,  and  included 
within  a  continuous  lengtli  of  twenty  miles  of  the  road  might  be 
sold  :  and  when  the  governor  of  the  State  should  certify  to  the 
Secretary  of  the  Interior  that  any  continuous  twenty  miles  of  the 
road  were  completed,  then  another  like  quantity  of  tlie  land  granted 
might  be  sold,  and  so  from  time  to  time  until  the  road  was  com- 
pleted ;  and  that  if  the  road  was  not  completed  within  ten  j^ears 
no  farther  sales  should  be  made,  and  the  lands  unsold  should 
revert  to  the  United  States. 

The  State  of  Iowa,  by  act  of  its  legislature,  passed  on  the  14th 
of  July,  1856,  accepted  the  grant  thus  made,  and  provided  for  the 
execution  of  the  trust.  (Laws  of  1856  of  Iowa.  p.  1.)  By  that 
act  the  State  granted  to  the  Iowa  Central  Air-line  Railroad  Com- 
pany, a  corporation  created  b}'^  its  legislature  for  the  construction 
of  the  railroad,  '"the  lands,  interests,  rights,  powers,  and  priv- 
ileges" conferred  by  the  act  of  Congress,  upon  the  express  con- 
dition, however,  that  in  case  the  companj'  should  fail  to  have 
completed  and  equipped  seventy-five  miles  of  the  road  within  three 
years  from  the  first  day  of  December  then  next  following,  and 
thirty  miles  in  addition  in  each  year  thereafter  for  five  years,  and 
the  remainder  of  its  whole  line  iu  one  year  thereafter,  or  on  the 
first  of  December.  1865.  then  it  should  be  competent  for  the  State 
to  resume  all  rights  to  the  lands  remaining  undisposed  of  b}-  the 
company,  and  all  other  rights  conferred  by  the  act.  The  company 
accepted  the  grant  from  the  State,  with  its  conditions,  and  imme- 
diately thereafter  caused  a  survey  and  location  of  the  line  of  the 
road  to  be  made,  a  map  of  which  was  filed  in  the  proper  offices  iu 
the  State  and  at  Washington. 

During  the  years  1857  and  1858  the  company  performed  a 
large  amount  of  grading  upon  the  road,  principally  between 
Lyons  and  Maquoketa. 

The  plaintift"  was  one  of  tlie  contractors  who  did  the  grading, 
and  he  received  in  payment  for  his  work  constructi(m  bonds  and 
land  scrip  of  the  comi)any.  These  were  afterward  surrendered, 
and  in  consideration  thereof  the  land  in  controversy  was  sold  and 
conve3^ed  by  the  corapauA'  to  him.     The  land  thus  conveyed  was 


376  Railroad  Land  Company  v.  Courtright. 

a  part  of  the  first  and  only  one  hundred  and  twent}'  sections  sold 
by  the  company,  and  these  sections  were  selected  within  a  con- 
tinuous twenty  miles  of  the  line  of  the  road.  The  selections  were 
approved  b}^  the  Seci-etar}'  of  the  Interior,  and  the  sections  were 
certified  by  him  to  the  State.  Those,  however,  selected  were  not 
from  lands  lying  along  the  the  eastern  end  of  the  road,  as  they 
might  have  been,  but  from  lands  lying  further  west. 

Although  the  company  did  a  large  amount  of  grading,  as  already 
mentioned,  it  never  completed  any  part  of  the  road,  and  in  March, 
1860.  the  legislature  of  Iowa  resumed  the  lands,  interests,  rights. 
powers  and  privileges  conferred  upon  the  company,  and  repealed 
the  clause  of  the  act  granting  them.  Subsequently,  during  the 
same  month,  it  conferred  the  same  lauds,  rights,  powers  and 
privileges  upon  the  Cedar  Rapids  and  Missouri  River  Railroad 
Company,  another  corporation  created  under  its  laws,  declaring, 
however,  that  the  right,  title  and  interest  held  by  the  State  in  the 
lands,  and  nothing  more,  was  conferred. 

This  grant  by  the  State  was  recognized  by  the  act  of  Congress 
of  June  2d,  1864,  amendatory  of  the  original  act  of  1856.  (13 
Stat,  at  Large.  95.)  By  its  fourth  section  it  was  expressly  pro- 
vided that  nothing  in  the  act  should  be  construed  to  interfere 
with  or  in  any  manner  impair  any  rights  acquired  by  any  rail- 
road company  named  in  the  original  act,  or  the  rights  of  any 
corporation.  ])ersou  or  persons,  acquired  through  any  such  com- 
pany, nor  be  cotfstrued  to  impair  any  vested  rights  of  property, 
but  that  such  rights  should  be  reserved  and  confirmed.  The  new 
company  afterwards  transferred  all  its  interests  in  the  lands  to 
the  defendant,  the  Iowa  Railroad  Land  Company. 

The  question  at  issue  between  the  parties,  and  litigated  in  the 
State  District  Court,  was  whether  the  plaintiff,  Courtright,  took 
a  good  title  to  the  lands  in  controversy  by  the  conveyance  from 
the  first  company — the  Iowa  Central  Air-Line  Railroad  Cora 
pany — or  whether  that  title  failed  to  pass  to  the  plaintiff  by  reason- 
of  the  time  in  which  the  lands  were  sold  being  in  advance  of  the 
construction  of  twenty  miles  of  the  road,  and  of  the  place  of  their 
selection  not  being  along  the  line  of  the  proposed  road  from  its 
commencement  on  the  east,  and  of  the  failure  of  that  company 
to  construct  the  length  of  road  designated  within  the  time  pre- 
scribed, such  construction  being  insisted  upon  as  a  condition 
precedent,  and  therefore  passed  by  the  grant  of  the  State  in  March, 
1860.  to  the  Cedar  Rapids  and  Missouri  River  Railroad  Company, 


Railroad  Land  Company  v.  Courtrkjht  377 

and  hy  conveyance  from  that  comi)any  to  the  defendant,  the  Iowa 
Railroad  Laud  Company. 

.  The  District  Court  gave  judgment  for  the  plaintiff,  and  the 
Supreme  Court  of  the  State  affirmed  that  juduinent.  and  the  case 
was  brought  here  on  writ  of  error. 

Messrs.  I.  Cool,,  N.  M.  Ilubbavfl  aud  ./.  F.  Wilson  for  the 
plaintiffs  in  error. 

M)\  Piatt  Smith  contra. 

Mr.  JrsTiCE  Field,  after  stating  the  case,  delivered  the  opinion 
of  the  coiart,  as  follows  : 

The  question  for  determination  is,  whether  the  plaintiff  took  a 

good  title  to  the  lands  in  controversy  under  the  conveyance  from 

the  first  company,  the  Iowa  Central  Air-Line  Railroad  Company, 

or  whether  that  title  is  vested  in  the  last  company,  the  Iowa  Rail- 
is 
road  Land  Company. 

It  is  contended  by  the  defendants  :  First,  tliat  under  tlie  act  of 
Congress  of  INIay  1.5th.  1856,  no  lands  could  be  sold  by  the  State 
until  twenty  continuous  miles  of  the  road  were  constructed ; 
second,  that  if  one  hundred  and  twenty  sections  could  be  sold  in 
advance  of  such  construction,  they  could  only  be  taken  from  lands 
adjoining  the  line  of  the  road  from  its  commencement  on  the  east ; 
and.  third,  that  the  grant  by  the  State  to  the  first  company  was 
upon  conditions  precedent,  which,  not  having  been  complied  with, 
the  title  did  not  pass.  Xeitiier  of  these  positions  can.  in  our  judg- 
ment, be  maintained.  The  act  of  Congress  by  its  express  language 
authorized  a  sale  of  one  hundred  and  twenty  sections  in  advance 
of  the  construction  of  any  part  of  the  road.  It  was  only  as  to 
the  sale  of  the  remaining  sections  that  the  provision  requiring  a 
previous  completion  of  twenty  males  applied.  It  is  true  it  was 
the  sole  object  of  the  grant  to  aid  in  the  construction  of  the  rail- 
road, and  for  that  pm-pose  the  sale  of  the  land  was  only  allowed 
as  the  road  was  completed  in  divisions,  except  as  to  one  hundred 
and  twenty  sections. 

The  evident  intention  of  Congress  in  making  this  exception 
was  to  furnish  aid  for  such  preliminary  work  as  would  be  required 
before  the  construction  of  any  i)art  of  the  road.  No  conditions, 
therefore,  of  any  kind  were  imposed  upon  the  State  in  the  dispo- 
sition of  this  (luantity.  Congress  relying  upon  the  good  faitli  of 
the  State  to  see  that  its  proceeds  were  applied  for  the  purposes 
contemplated  l)y  the  act. 


878       River  Bridge  Company  c.  Railroad  Company. 

Nor  was  tliere  any  restriction  upon  the  State  as  to  the  place 
where  the  one  hundred  and  twenty  sections  should  be  selected 
along  tlie  line  of  the  road,  except  that  they  should  be  included 
within  a  continuous  leni>;tli  of  twenty  miles  on  each  side.  They 
might  be  selected  from  lands  adjoining  the  eastern  end  of  the 
road  or  the  western  end,  or  along  the  central  portion. 

The  act  of  Congress  of  May  15th,  1856,  was  a  grant  to  the  State 
in  prespiitl.  It  passed  a  title  to  the  odd  sections  designated,  to  be 
afterwards  located  when  the  line  of  the  road  was  fixed,  and  the 
location  of  the  odd  sections  thus  became  certain,  the  title  of 
the  State  acquired  precision,  and  at  once  attached  to  the  land. 
And  the  act  of  the  State  of  July  14th,  1856,  was  also  a  grant  in 
preseuti  to  the  first  railroad  company.  That  company  took  the 
title  and  interests  of  the  State  upon  the  terms,  conditions,  and 
restrictions  expressed  in  the  act  of  Congress.  The  further  con- 
ditions as  to  the  completion  of  the  road  imposed  by  the  State 
were  conditions  subsequent,  and  not  conditions  precedent,  as 
contended  by  the  defendants.  The  terms  in  which  the  right  is 
reserved  by  the  act  of  the  State  to  resume  the  lands  granted  imply 
what  the  previous  language  of  the  act  declares,  that  a  present 
transfer  was  made,  and  not  one  dependent  upon  conditions  to  be 
previously  performed.  The  right  is  by  them  restricted  to  such 
lands  as  at  the  time  of  the  resumption  had  not  been  previously 
disposed  of.  The  resumption,  therefore,  of  the  grant  by  the  failure 
of  the  first  company  to  complete  the  road  did  not  impair  the  title 
to  the  lands  which  the  act  of  Congress  authorized  to  be  sold  in 
advance  of  such  completion,  and  which  were  sold  by  that  company. 

We  are  of  opinion,  therefore,  that  the  plaintiiT  took  a  good  title 
to  the  premises  in  controversy  by  his  conveyance  from  that  com- 
pany.    The  judgment  of  the  court  below  is.  therefore, 

:  Ajjirmed. 


RErvBLicAN  River  Bridge  Company  v.  Kansas  Pacifk    Rail- 
road Company. 

October  'Perm,  1S75,— 2  Otto.  315. 

1.  The  decision  of  the  highest  State  court  in  wliich  such  decision  could 
be  had,  adverse  to  a  riglit  under  an  act  of  Congress,  set  up  in  a 
chancery  suit,  or  in  any  other  case,  where  all  the  evidence  becomes 
a  part  of  the  record  in  that  court,  the  same  record  being  brought 
hei-e,  can  be  re-examined  upon  the  law  and  the  facts,  as  far  as  may 


River  Bridge  Company  v  Railroad  Company.       379 

be  necessary  to  determine  the  validity  of  tliat  ri^;lit.  In  a  common 
law  action,  where  the  facts  are  passed  npon  bj'  a  jurj'.  or  by  a  State 
court,  or  by  a  referee,  to  whom  they  liave  been  submitted  by  waiv- 
ing a  jury,  where  the  finding  is,  by  the  State  law,  conclusive,  this 
court  has  the  same  inability  to  review  those  facts  as  it  has  in  a  case 
coming  from  a  circuit  court  of  the  United  States. 

2,  Congress,  by  joint  resolution,  granted  to  the  defendant,  subject  to 
tlie  approval  of  the  President,  ''fractional  section  one,"  on  the  west 
side  of  a  military  reservation,  provided  the  usefulness  of  the  latter 
would  not,  in  liis  opinion,  be  imijaired  for  military  purposes.  'I'he 
President,  by  an  executive  order,  set  aside  to  the  defendant  said 
fractional  section,  as  designated  on  a  map  of  survej^  accompanying 
the  letter  of  the  Secretary  of  the  Interior,  The  court  which  tried 
the  facts,  having  found  that  the  fractional  section  was  inside  of  the 
reservation,  was  in  the  possession  of  the  defendant,  and  was  the 
land  claimed  in  this  action,  held  that  the  title  thereto  was  vested  in 
the  defendant. 

Held,  1 .  That  the  finding  being  upon  a  mixed  question  of  law  and  fact, 
and  largelj'  depending  for  its  correctness  on  surveys  not  produced 
here,  and  there  being  no  plat  in  the  record,  was  not  open  to  inquiry. 
2.  That,  looking  to  the  manifest  intent  of  the  joint  resolution,  and 
to  the  fact  that  the  grant  was  not  to  be  consummated  until  the 
President  had  determined  that  the  usefulness  of  the  reservation 
would  not  be  thereby  impaired,  the  description  in  the  joint  resolu- 
tion meant  such  a  fractional  section  within  the  reservation,  on  its 
west  side.  3.  That  the  title  of  the  defendant  became  absolute  on 
tlje  issue  of  the  President's  order,  and  had  relation  back  to  tlie 
date  of  the  passage  of  the  joint  resolution. 

Erkok  to  the  Supreme  Court  of  the  State  of  Kansas. 

Mr.    Robert    McBratney   for   the  plaintiff  in   error;    and    Mr. 

WilUiMii  T.  Otto  coiitni. 

Mr.  Ji'STiC'E  Miller  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  Supreme  Court  of  the  State  of 
Kansas.  The  contest  in  the  State  court  concerned  the  title  to 
real  estate,  both  parties  claiming  under  grants  from  Congress 
made  at  different  times.  In  the  district  court  for  the  county  of 
Shawnee,  where  the  suit  was  originally  brought,  the  parties  sub- 
mitted the  case  to  the  court  without  the  intervention  of  a  jury  : 
and  that  court  found  a  series  of  facts,  fourteen  in  number,  on 
which  it  declared  the  law  to  be  for  the  defendants.  This  judg- 
ment was  affirmed  on  error  in  the  Supreme  Court  of  the  State, 
whicli  decision  the  present  writ  of  error  brings  before  us. 

The  finding  b}^  the  district  court  was  received  by  the  Sui)reme 


380       River  Bridge  Company  v.  Railroad  Company. 

Court  of  the  State  as  conclnsive  as  to  all  facts  in  issue,  and  it  is 
equally  conclusive  nijon  us.  Where  a  right  is  set  up  under  an 
act  of  Congress,  in  a  State  court,  any  matter  of  law  found  in  the 
record,  decided  by  the  highest  court  of  the  State,  bearing  on  the 
right  so  set  up  under  the  act  of  Congress,  can  be  re-examined  here. 

In  chancery  cases,  or  in  any  other  class  of  cases  where  all  the 
evidence  becomes  part  of  the  record  in  the  highest  court  of  the 
State,  the  same  record  being  brought  here,  this  court  can  review 
the  decision  of  that  court,  on  both  the  law  and  the  fact,  so  far  as 
may  be  necessary  to  determine  the  validity  of  the  right  so  set  up 
under  the  act  of  Congress  ;  but  in  cases  where  the  facts  are  sub- 
mitted to  a  jury,  and  are  passed  upon  by  the  verdict,  in  a  com- 
mon law  action,  this  court  has  the  same  inability  to  review  those 
facts,  in  a  case  coming  from  a  State  court,  that  it  has  in  a  case 
coming  from  a  circuit  court  of  the  United  States. 

This  conclusiveness  of  the  facts  found,  extends  to  the  finding 
by  a  State  court,  to  whom  they  have  been  submitted  by  waiving 
a  jury,  or  to  a  referee,  where  they  are  so  held  by  State  laws,  as 
well  as  to  the  verdict  of  a  jury.  {Boggs  v.  The  Merced  Mining 
Co.,  3  Wall.  304.) 

Two  propositions  of  law,  ruled  by  the  State  court,  were  excepted 
to  by  plaintiff,  the  first  of  which  gives  construction  to  grant 
under  which  the  plaintiff  claimed.  The  first  is  in  the  following 
language : 

"  That  the  joint  resolution  passed  by  Congress,  approved  July  26, 
1866,  was  and  must  be  construed  as  a  grant  by  Congress,  to  the  defend- 
ant, of  the  land  in  controversy  ;  and  that,  upon  the  Issuance  of  the 
executive  order  of  the  President,  dated  July  19,  1867,  the  legal  title  to 
said  land  vested  in  defendant,  and  relate&  back  to  the  date  of  the  passage 
of  said  joint  resolution  of  July  26,  1866." 

This  joint  resolution  here  referred  to,  is  as  follows  : 

"  Resolved,  by  the  Senate  and  House  of  Representatives  of  the  United  States 
of  America  in  Congress  assembled,  Tliat,  subject  to  approval  by  the  Presi- 
dent, the  right  of  way,  one  hundred  feet  in  width,  is  hereby  granted  to 
the  Union  f'aeific  Railroad  Company,  and  the  companies  constructing 
the  branch  roads  connecting  therewith,  for  tlie  construction  and  opera- 
tion of  their  roads  over  and  upon  all  military  reserves  thrnugh  which 
the  same  may  pass  ;  and  the  President  is  hereby  authorized  to  set  apart 
to  the  Union  Pacific  Railroad  Company,  eastern  division,'  twenty  acres 
of  the  Fort  Riley  military  reservation,  for  depot  and  other  purposes, 
in  the  bottom  opposite  "Riley  City;"  also,  fractional  section  "one," on 
the  west  side  of  said  reservation,  near  Junction  City,  for  the  same  pur- 
poses ;  and  also  to  restore,  from  time  to  time,  to  tlie  public  domain,  any 


River  Bridge  Company  v.  Railroad  Company.        381 

portion  of  said  military  reserve  over  wliieli  tlie  tJiiion  l*acilic  Kailniad 
or  any  of  its  branches  may  pass,  and  wtiicli  shall  not  be  recinired  for 
military  purposes  ;  provided,  that  the  President  shall  not  permit  the 
location  of  any  such  railroad,  or  the  diminution  of  anj'  such  reserve  in 
any  manu'  r.  so  as  to  impair  its  usefulness  for  military  purposes,  so  loni;- 
as  it  shall  be  required  therefor." 

On  the  nineteenth  day  of  July,  1867,  the  President,  by  an  execu- 
tive order,  declared  that,  by  virtue  of  said  resolution,  there  is  set 
apart  to  the  Union  racifie  Railroad  Company,  eastern  division 
(which  was  then  the  corporate  name  of  the  defendant),  the  twenty 
acres  of  the  Fort  Riley  military  reservation,  and  fractional  sec- 
tion one,  on  the  west  side  of  said  reservation,  near  Junction  City, 
for  a  depot  and  other  purposes,  as  designated  on  a  ma])  or  survey 
accompanjdng  the  letter  from  the  Secretary  of  the  Interior,  of  Feb. 
15.  1867. 

The  first  objection  made  here  to  the  conclusion  of  law  by  the 
court,  that  the  resolution  and  order  confer  title  to  the  land  in  con- 
troversy, is,  that  the  land  of  which  defendant  is  in  possession,  as 
fractional  section  one,  is  a  part  of  the  reservation  ;  whereas,  the 
true  construction  of  the  joint  resolution  is.  that  it  has  reference 
to  a  fractional  section  one,  lying  outside  of  tlie  reservation,  and 
adjoining  it  on  the  west  side. 

Xo  plat  or  survey,  official  or  otherwise,  accompanies  this  record, 
to  enable  us  to  understand  or  decide  this. question  in  a  satisfactory 
manner,  nor  is  this  map  or  letter  of  the  secretary  in  evidence. 
The  circuit  judge,  among  his  findings  of  fact,  states  distincth" 
that  the  fractional  section  one,  referred  to  in  the  joint  resolution, 
is  inside  of  the  reservation,  and  is  the  piece  of  land  now  in  pos- 
session of  the  defendant,  and  claimed  by  plaintiff  in  this  action. 
So  far  as  the  correctness  of  this  finding  depends,  as  it  must  largely 
depend,  on  surveys  not  produced  to  us,  it  is  not  open  here  to 
inquiry ;  and  as  it  must,  from  its  very  nature,  be  a  mixed  ques- 
tion of  law  and  fact,  which  would  be  concluded  b}'^  the  verdict  of 
a  jury,  it  must  be  equally  conclusive  here  ;  the  law  question  being 
the  construction  of  the  words  of  the  grant,  and  the  fact  being 
the  manner  in  which  the  existing  government  survey's  were  made 
and  numbered  in  reference  to  tlie  fractional  parts  of  section  one. 

Looking,  however,  to  the  manifest  intent  of  the  joint  resolu- 
tion, to  the  fact  that  neither  the  grant  of  the  twentj'  acres  con- 
fessedly a  part  of  the  reservation,  nor  of  the  fractional  section 
one,  was  to  be  consummated  until  the  President  had  determined 


382       River  Bridce  Company  v.  Railroad  Company. 

that  both  could  V)e  given  up  without  impairing  the  usefulness  of 
the  reservation  for  military  purposes,  we  are  of  opinion  that  frac- 
tional section  one,  on  the  west  side  of  said  reservation,  meant 
such  a  section  to  be  found  in  the  reservation,  on  its  west  side. 

The  next  objection  is.  tiiat  the  grant  does  not  purport  to  carry 
the  fee  ;  and.  as  it  was  only  a  use  or  equitable  right,  Congress  had 
the  power  to  grant  the  fee,  as  it  did  by  the  joint  resolution  of 
March  2,  1867.  to  plaintiff.  It  is  certainly  true  that  the  joint 
resolution  of  March  2,  and  the  patent  issued  under  it  to  plain- 
tiff, cover  geographically  the  land  in  controversy  ;  and  Frisbie  v. 
Whitney,  9  AVall.,  187.  and  the  Yosemite  Valley  Case,  15  Id.,  77, 
are  relied  on  to  show  that  Congress  couln  grant  the  land  to  the 
other  parties  while  the  title  of  defendant  was  thus  inchoate. 

But  there  are  two  answers  to  this  :  1.  The  title  of  the  defend- 
ant, whatever  it  was,  became  absolute  on  the  issuing  of  the  Pres- 
ident's order,  and  had  relation  back  to  the  date  of  the  joint  reso- 
lution under  which  it  was  made.  It  is,  therefore,  whatever  its 
nature,  an  elder  title  than  that  of  plaintiff.  It  is  not  necessary 
here  to  decide  whether  it  is  a  grant  of  the  legal  title,  or  only 
the  grant  of  a  use  or  easement ;  for  in  either  case,  it  vests  the 
possession,  of  which  the  defendant  cannot  be  deprived  by  an 
action  of  ejectment.  2.  The  joint  resolution  under  which  plain- 
tiff claims  contains  a  proviso  that  nothing  therein  contained 
shall  be  construed  to  interfere  with  any  grant  of  any  part  of  said 
land  heretofore  made  by  the  United  States.  As  no  other  grant 
has  been  shown  of  any  part  of  this  land  except  the  one  under 
which  the  defendant  claims,  this  })roviso  was  no  doubt  intended 
to  exeinpt  it  from  plaintiff's  grant ;  and,  if  there  had  been  half  a 
dozen  other  previous  grants,  it  would  have  excepted  them  all  as 
well  as  this  from  the  operation  of  the  joint  resolution  in  which  it 
is  found. 

In  the  first  conclusion  of  law  finding  the  title  under  the  joint 
resolution  of  1866,  and  the  order  of  the  President,  to  be  in  defend- 
anti  we  find  no  error. 

The  other  proposition,  to  which  i)lnintiff  excepted,  declares  that 
plaintiff  had  title  to  all  the  land  covered  by  the  joint  resolution  of 
March  2,  1867,  and  by  the  patent,  except  that  claimed  by  defend- 
ant under  the  joint  resolution  of  Jul}*  26,  1866. 

As  this  conclusion  follows  necessarily  from  what  we  have 
already  said,  it  is  unnecessary  to  notice  it  further. 

Judgment  Affirmed. 


Newhall  v.  Sanger.  383 

Neavhall  v.  Sanger. 
October  Term.  1875.— 2  Otto,  761. 

1.  The  act  of  Julj^  1,  1862,  (12  Stat.,  492),  grants  to  the  AVestern  Tacific 

Railroad  Company  every  alternate  section  of  public  land  designated 
by  odd  numbers,  within  tlie  limits  of  ten  miles  on  each  side  of  its  road, 
not  sold,  reserved,  or  otherwise  disposed  of  by  the  United  States,  and 
to  which  a  homestead  or  pre-emption  claim  may  not  have  attached 
at  tlie  time  the  line  of  the  road  is  definitely  fixed.  The  act  of 
1864  (13  Stat.,  3.58)  enlarges  those  limits,  and  declares  that  the  grant 
by  it,  or  the  act  to  which  it  is  an  amendment,  "  shall  not  defeat  or 
impair  any  pre-emption,  homestead,  swamp  land,  or  other  lawful 
claim,  nor  include  any  government  reservation,  or  mineral  lands, 
or  the  improvement  of  any  bona  fide  settler."  Ueld^  that  lands  within 
tlie  boundaries  of  an  alleged  Mexican  or  Spanish  grant,  which  was 
subjudice  at  the  time  the  Secretary  of  the  Interior  ordered  a  with- 
drawal of  lands  along  the  route  of  the  road,  are  not  embraced  by 
the  grant  to  the  company. 

2.  The  words  "  public  lands"  are  used  in  our  legislation  to  describe  such 

lands  as  are  subject  to  sale  or  other  disposition,  under  general  laws. 

3.  The   fiction  of  law,  that  a  term  consists  of  but  one  day,  cannot  be 

invoked  to  antedate  the  judicial  rejection  of  a  claim,  so  as  to  render 
operative  a  grant  which  would  otherwise  be  without  eftect. 

Appeal  from  tlie  Circuit  Court  of  the  United  States  for  the 
District  of  California. 

Submitted  on  printed  arguments  by  Mr.  Moatijomery  Blair  for 
tlie  appellant,  and  by  Mr.  George  F.  Edmunds  for  the  appellee. 

Me.  Justice  Davis  delivered  the  opinion  of  the  court. 

The  object  of  this  suit  is  to  determine  the  ownership  of  a  quar- 
ter-section of  land  in  California.  The  appellee,  who  was  the 
complainant,  claims  through  the  Western  Pacific  Railroad  Com- 
pany, to  whom  a  patent  was  issued  in  1860,  in  professed  compli- 
ance with  the  requirements  of  the  acts  of  Congress  commonly 
known  as  the  Pacific  Railroad  Acts.  The  appellant  derives  title 
by  mesne  conveyances  from  one  Ransom  Dayton,  the  holder  of  a 
patent  of  a  later  date,  which  recites  that  the  land  was  witliin  the 
exterior  limits  of  a  Mexican  grant  called  Moquelamos,  and  that  a 
patent  had,  by  mistake,  been  issued  to  the  company.  The  court 
below  decreed  that  the  appellee  was  the  owner  in  fee  simple  of 
the  disputed  premises  ;  and  that  the  junior  patent,  so  far  as  it 
related  to  them,  should  be  canceled. 

The  act  of  .July  1.  1862  (12  Stat.,  492),  grants  to  certain  rail- 


384  Newhall  v.  Sanger. 

road  companies,  of  which  the  Western  Pacific,  by  subsequent 
legislation,  liecame  one.  every  alternate  section  of  public  laud 
designated  by  odd  unnibers,  within  ten  miles  of  each  side  of  their 
respective  roads,  not  sold,  reserved,  or  otherwise  disposed  of  by 
the  United  States,  and  to  which  a  homestead  or  pre-emption  claim 
may  not  have  attached  at  the  time  the  line  of  the  road  is  defi- 
nitely fixed.  It  requires  that,  within  a  prescribed  time,  a  map 
designating  the  general  route  of  each  road  shall  be  filed  in  the 
Department  of  the  Interior,  and  that  the  Secretary  thereof  shall 
then  cause  the  lands  within  a  certain  distance  from  such  route  to 
be  withdrawn  from  pre-emption,  private  entry,  and  sale.  The 
precise  date  when  the  Western  Pacific  Company  filed  its  map  is 
not  stated  in  the  record  ;  but  we  infer  that  it  was  between  the 
first  day  of  the  December  term  (1864)  of  this  court,  and  the  thir- 
teenth day  of  February,  1865.  At  all  events,  the  withdrawal  for 
this  road  was  made  on  the  31st  of  January.  186.5  ;  and  our  records 
show  that  the  jNIoquelamos  grant,  which  had  been  regularly  pre- 
sented to  the  commissioners,  under  the  act  of  March  5,  1851,  and 
duly  prosecuted  by  appeal,  was  rejected  here  February  13,  1865. 
It  is  a  conceded  fact,  that  the  lands  embraced  by  it  fall  within 
the  limits  of  the  railroad  grant  which  were  enlarged  by  the  amen- 
datory act  of  1864  (13  Stat.,  p.  358.)  This  act  also  declares  that 
any  lands  granted  by  it.  or  the  act  to  which  it  is  an  amendment. 
*'  shall  not  defeat  or  impair  any  pre-emption,  homestead,  swamp 
land,  or  other  lawful  claim,  nor  include  any  government  reserva- 
tion, or  mineral  lands,  or  the  improvements  of  any  bona  fide 
settler." 

There  can  be  no  doubt  that,  by  the  withdrawal,  the  grant  took 
effect  upon  such  odd-numbered  sections  of  public  lands  within 
the  specified  limits  as  were  not  excluded  from  its  operation  ;  and 
the  question  arises,  whether  lands  within  the  boundaries  of  an 
alleged  Mexican  or  Spanish  grant,  which  was  then  sub  Jadice,  are 
public  within  the  meaning  of  the  acts  of  Congress  under  which 
the  patent,  whereon  the  appellee's  title  rests,  was  issued  to  the 
railroad  company; 

The  subject  of  grants  of  land  to  aid  in  constructing  works  of 
internal  improvement  was  fully  considered  at  the  present  term,  in 
Leavenworth,  Lawrence  and  Galveston  Railroad  Company,  v. 
United  States,  supra.  We  held  that  they  did  not  embrace  tracts 
reserved  by  competent  authority  for  any  purpose  or  in  an}^  manner, 
although  no  exception  of  them  was  made  in  the  grants  themselves  ; 


Newhall  v.  Sanger.  385 

and  we  confined  a  grant  of  every  alternate  section  of  "land''  to 
such  whereto  the  complete  title  was  absolutely  vested  in  the  United 
States.  The  acts  which  govern  this  case  are  more  explicit,  and 
leave  less  room  for  construction.  The  words  -'public  lands'"  are 
habituall_v  "sed  in  our  legislation  to  describe  such  as  are  subject 
to  sale  or  other  disposal  under  general  laws.  That  they  were  so 
employed  in  this  instance  is  evident  from  the  fact,  that  to  them 
alone  could  the  order  withdrawing  lands  from  pre-emption,  )u-ivate 
entry,  and  sale,  apply. 

The  .status  of  lands  included    in   a   Spanish   or  ^lexican  claim,  \ 
pending  before  the  tribunals  charged  with  the  duty  of  adjudicat- 
ing it,  must  be  determined  by  the  condition  of  things  which  existed 
in  California  at  the  time  it  was  ceded,  and  by  our  subsequent 
legislation.     The  rights  of  private  property,  so  far  from  having 
been  impaired  by  the  change  of  sovereignty  and  jurisdiction,  were  j 
fully  secured  by  the  law  of  nations,  as  well  as  by  treaty  stipulation.  ;. 
It  had  been  the  practice  of  Mexico  to  grant  large  tracts  to  indi-  / 
viduals,  sometimes  as  a  reward  for  meritorious  public  services,  i 
but  generally  with  a  view  to  invite  emigration  and  promote  the 
settlement  of  her  vacant  territory.    The  country,  although  sparsely/ 
populated,  was  dotted  over  with  land  claims.  ' 

Exact  information  in  regard  to  their  extent  and  validity  could 
hardly  be  obtained  during  the  eager  search  for  gold  which  prevailed 
soon  after  we  acquired  California.  It  was  not  until  iNIarch  3. 
1851,  that  our  government  created  a  commission  to  receive,  ex- 
amine, and  determine  them.  As  the  operations  of  our  land  system, 
had  it  then  been  extended  to  California,  would  have  produced  the 
utmost  confusion  in  titles  to  real  estate  within  her  limits,  it  was 
wisely  withheld  by  Congress,  until  such  claims  should  be  disposed 
of.  The  act  of  that  date  declared  that  all  lands,  the  claims  to 
which  should  not  have  been  presented  within  two  years  therefrom, 
should  "be  deemed,  held,  and  considered  to  be  a  part  of  the  public 
domain  of  the  United  States."  This  was  notice  to  all  the  world 
that  lands  in  California  were  held  in  reserve  to  afford  a  reasonable 
time  to  the  claimant  under  an  asserted  Mexican  or  Spanish  grant, 
to  maintain  his  rights  before  the  commission.  He  was  not  bound 
by  its  advei'se  decision,  but  was  entitled  to  have  it  reviewed  by 
the  District  Coui-t,  with  a  right  of  ultimate  appeal  to  the  Supreme 
Court.  If  he,  however,  neglected  to  take  timely  and  proper  steps 
to  obtain  such  review,  the  decision  was  thereby  rendered  final  and 
conclusive.     The  lands  then  fell  into  the  category  of  public  lands. 

25 


886  Newiiall  v.  Sanger 

The  same  remark  will  apply  to  the  judgment  of  the  District 
Court ;  but  if  he  prosecuted  his  appeal  to  the  trilninal  of  last 
resort,  the  reserved  lauds  retained  their  original  cluiracter  in  all 
the  successive  stages  of  the  cause,  and  they  were  regarded  as 
forming  a  part  of  our  national  domain  only  after  the  claim  cover- 
ing them  had  been  ''finally  decided  to  be  invalid.'' 

A  failure  therefore  to  present  the  claim  within  the  required  time, 
or  a  rejection  of  it  either  by  the  commission  or  by  the  District 
Court,  without  seeking  to  obtain  a  review  of  their  respective  decis- 
ions, or  by  this  court,  rendered  it  unnecessary  to  further  reserve 
the  claimed  lands  from  settlement  and  appropriation.  They  then 
became  public  in  the  just  meaning  of  that  term,  and  were  subject 
to  the  disposing  power  of  Congress. 

It  may  be  said  that  the  whole  of  California  was  part  of  our 
domain,  as  we  acquired  it  by  treaty,  and  exercised  dominion  over 
itX  The  obvious  answer  to  all  inferances  from  this  acknowledged 
fact,  so  far  as  they  relate  to  this  case,  is,  that  the  title  to  so  much 
of  the  soil  as  was  vested  in  individual  proprietorship  did  not  pass 
to  the  United  States.  It  took  the  remaining  lands  subject  to  all 
the  equitable  rights  of  private  propert}^  therein,  which  existed  at 
the  time  of  the  transfer.  Claims,  whether  grounded  upon  an 
inchoat  or  a  perfected  title,  were  to  be  ascertained  and  adequately 
protected.  This  duty,  enjoined  by  a  sense  of  natural  justice  and 
by  treaty  obligations,  could  only  be  discharged  by  prohibiting 
intrusion  upon  the  claimed  lands  until  an  opportunity  was  affor- 
ded the  parties  in  interest  for  a  judicial  hearing  and  determination. 
It  was  to  be  expected  that  unfounded  and  fraudulent  claims  would 
be  presented  for  confirmation.  There  was  in  the  opinion  of 
Congress,  no  mode  of  separating  them  from  those  which  were 
valid  without  investigation  by  a  competent  tribunal ;  and  our  legis- 
lation was  so  shayjed  that  no  title  could  be  initiated  under  the  laws 
of  the  United  States,  to  lands  covered  by  a  Spanish  or  Mexican 
claim,  until  it  was  barred  by  lapse  of  time  or  rejected. 

This  is,  in  our  opinion,  the  true  interpretation  of  the  act  of  1851. 
Until  recently  it  governed,  it  governed  the  action  of  the  Interior 
Department  upon  the  advice  of  the  law  officers  of  the  government 
(11  Op.  Att'y  Gen.,  493  ;  13  Id.,  388),  and  was,  at  least  by  implica- 
tion, sanctioned  by  this  court  in  Frisbie  v.  Whitney,  9  Wall.,  187. 
No  subsequent  legislation  ccmflicts  with  it.  On  the  contrary,  the 
excepting  words  in  the  sixth  section  of  the  act  of  March  3,  1853, 
introducing  the  land  system  into  California  (10  Stat.,  246),  clearly 


Newhall  v.  Sanger.  387 

denote  that  lands  such  as  these,  at  the  time  of  their  withdrawal, 
were  not  considered  by  Congress  as  in  a  condition  to  be  acquired 
by  individuals  or  granted  to  corporations.  This  section  expressly 
excludes  from  pre-emption  and  sale  all  lands  claimed  under  any 
foreign  grant  or  title. 

It  is  said  that  this  means  "lawfully"  claimed  :  but  there  is  no 
authority  to  import  a  word  into  a  statute  in  order  to  change  its 
meaning.  Congress  did  not  prejudge  any  claim  to  be  unlawful, 
but  submitted  them  all  for  adjudication.  Besides  the  act  of  March 
3,  18.53,  which  authorized  the  settlement  and  purchase  of  the 
lands  released  by  the  operation  of  the  law  of  1851,  there  was  a 
general  law  (10  Stat.,  244)  passed  on  the  same  day,  which  conferred 
upon  a  settler  on  lands  theretofore  reserved  on  account  of  claims 
under  foreign  grants,  then  or  thereafter  declared  by  the  supreme 
court  to  be  invalid,  the  rights  granted  by  the  pre-emption  law, 
after  the  lands  should  have  been  released  from  reservation — a  class 
of  lands,  which  from  an  early  day,  it  had  been  the  policy  to  reserve 
until  the  adjustment  of  all  such  claims.  (See  act  of  1811,  2  Stat., 
pp.  664,  665,  sects.  6,  10.)  This  provision  clearly  implies  that  no 
right  of  pre-emption  previously  attached  to  lands  of  that  descrip- 
tion by  reason  of  settlement  and  cultivation. 

It  is  unnecessary  to  dwell  longer  upon  this  question,  or  to  review 
subsequent  statutes  touching  the  government  lands  in  California. 
It  suffices  to  say,  that  there  is  nothing  in  any  of  tliem  which 
weakens  the  construction  we  have  given  to  the  act  of  1851.  This 
controversy  depends  upon  that  act  and  the  Pacific  Railroad  acts 
which  we  have  cited. 

The  appellee  invokes  the  doctrine,  that  judgments  of  a  court 
during  a  term  are,  by  relation,  considered  as  having  been  rendered  on 
the  first  day  thereof.  There  is  a  fiction  of  law  that  a  term  consists 
of  but  one  day  :  but  such  a  fiction  is  tolerated  by  the  courts  only 
for  the  purposes  of  justice.  {Gibson  v.  Chouteau,  13  Wall.,  92.)  To 
antedate  the  judicial  rejection  of  a  claim,  so  as  to  render  operative 
a  grant  which  would  be  otherwise  without  effect,  does  not  promote 
the  ends  of  justice,  and  cannot  be  sanctioned. 

As  the  premises  in  controversy  were  not  public  lands,  either  at 
the  date  of  the  grant  or  of  their  withdrawal,  it  follows  that  they 
did  not  pass  to  the  railroad  company. 

Decree  reversed,  and  cause  remanded  with  direction  to  disviiss 
the  bill. 


388  Leavenworth,  etc.,  R.  R.  Co.  r.  U.  S. 

Mr.  Justice  Field,  with  whom  concurred  Mu.  Jistk  eStkoncj, 
dissenting. 

T  am  not  able  to  agree  with  tlie  majority  of  the  court  in  this 
case.  The  only  exception  made  by  Congress  from  its  grant  to 
the  Western  Pacific  Railroad  Company,  consisted  of  lands  within 
certain  limits,  whicli,  at  the  time  the  line  of  tlie  road  was  definitely 
fixed,  had  been  "sold,  reserved,  or  otherwise  disposed  of  by  the 
United  States,"  or  to  which  a  pre-emption  or  homestead  claim  had 
then  attached.  The  exception  was  intended  to  keep  the  public 
Lands  open  to  settlement  and  sale  until  the  line  of  the  road  was 
established.  I  cannot  understand  how  the  presentation  of  a  fraud- 
ulent claim  to  any  portion  of  the  lands  within  tlie  limits  designa- 
ted, founded  upon  an  invalid  or  forged  Mexican  grant,  could 
change  their  character  as  public  lands,  or  impair  the  title  of  the 
company,  or  have  any  other  efl'ect  than  to  subject  the  company  to 
the  annoyance  and  expense  of  exposing  and  defeating  the  claim. 
Nor  can  I  perceive  the  bearing  upon  the  case  of  the  act  of  March 
3,  1853.  "to  extend  pre-emption  rights  to  certain  lands  therein 
mentioned  ;"  for  that  act  applies  only  to  pre-emption  rights,  and 
by  its  terras  is  limited  to  lands  previously  reserved. 

I  think  the  judgment  of  the  court  below  should  be  affirmed. 


Leavenavorth.    Laweence.    and    Galvestok  Eaij-koad  Com- 
pany r.  United  States. 

October  'I  erni.  187-"..— 2  Otto.  738. 

1.  Where  rights  clainied  under  tlie  United  States  are  set  up  a(!,ahist  it. 

they  must  be  so  clearly  defined  that  there  can  be  no  question  of  the 
piirposT"  of  (  ongTess  to  confer  them. 

2.  riie  rule  announced  in  the  former  decisions  of  this  court,  that  a  grant 

by  the  I'nited  States  is  strictly  construed  against  the  grantee,  applies 
as  well  to  grants  to  a  state  to  aid  in  building  railroads  as  to  one 
giantiiiii"  specUil  privileges  to  a  private  corporation. 

3.  The  doctrine  in  IVi/cox  v.  .hirk,si>ii   13  Pet.,  49s;.  that  a  tract  lawfully 

appropriated  to  any  purpose  becomes  thereafter  severed  frem  the 
mass  of  public  lauds,  and  that  no  subsequent  law  or  proclamation 
will  be  con.-trued  to  embrace  it.  or  to  operate  upon  it,  although  no 
exception  be  made  of  it,  reaffirmed  and  held  to  apply  with  more 
foi'ce  to  Indian  than  to  military  reservations,  inasmuch  as  the  latter 
arc  the  absolute  property  of  the  government,  wliilst  in  the  former 
other  rights  are  vested. 


Leavenworth,  etc.,  K.  R.  Co.  v.  U.  S.  389 

4.  When  (■oii<>n:!8s  enacts   "that  there  be  ami  is  hereby  . "granted  "  to  a 

State,  to  aid  in  the  construction  of  a  specified  railroad,  "ever}' alter- 
nate section  of  land,  designated  by  odd  numbers,"  within  certain- 
limits  of  each  >ide  of  the  road,  the  State  takes  an  immediate  interest 
in  land  so  situate,  whereto  the  complete  title  is  in  the  Inited  States 
at  the  date  of  the  act,  although  a  survey  of  the  land  and  a  location- 
of  the  road  are  necessary  to  give  precision  to  the  title  and  attach  it 
to  any  particular  tract.  Such  a  grant  is  applicable  only  to  public 
land  owned  absolutely  by  the  United  States.  No  other  is  subject  to 
survej'  and  divi-ion  into  such  sections. 

5.  Where  the  right  of  an  Indian  tribe  to  the  jjossession  and  use  of  certain. 

lands,  as  long  as  it  may  choose  to  occupj^  the  same,  is  assured  by 
treaty,  a  grant  of  them,  absolutely  or  cinn  ovcn\  by  Congress,  to  au)« 
in  building  a  x-ailroad,  violates  an  express  stipulation  ;  and  a  grant 
in  general  terms  of  "land"  cannot  be  construed  to  embrace  them. 

6.  A  proviso,  that  any  and  all  lands  heretofore  reserved  to  the  Unit6(li 

States,  for  any  purpose  whatever,  are  reserved  from  the  operation 
of  the  grant  to  which  it  is  annexed,  applies  to  lands  set  apart  for  the 
use  of  an  Indian  tribe  under  a  treaty.  They  are  reserved  to  the  United 
States  for  that  specific  use  ;  and,  if  so  reserved  at  the  date  of  the 
grant,  are  excluded  from  its  operation.  It  is  immaterial  whether 
they  subsequently  become  a  part  of  the  public  lands  of  the  country. 

7.  The  act  of  ^Nlarch  3.  1863  (12  Stat.,  772),  to  aid  in  the  construction  of 

certain  railroads  in  Kansas,  embraces  no  part  of  the  lands  reserve 
to  the  Great  and  Little  Osages  by  the  treaty  of  .June  2,  182.5  (7  Stat., 
240);  and  the  treaty  concluded  September  29,  18G5.  and  proclainn^d 
January  21,  18(57  (14  Stat  ,  687),  neither  makes  nor  recognizes  a  grant 
of  such  lands.  1  he  efiect  of  the  treaty  is  simply  to  provide  that  any 
rights  of  the  companies  designated  by  the  State  to  build  the  roads 
should  not  be  barred  or  impaii-ed  by  reason  of  the  general  terms  of 
the  treaty,  bur  not  to  declare  tliat  such  rights  existed. 

8.  The  act  of  C  ongress  of  even  date  with  said  act  (12  Stat.,  703),  author- 

izing treaties  for  the  removal  of  the  several  tribes  of  Indians  from 
the  State  of  Kansas,  and  for  the  extinction  of  their  title  and  a  sub- 
sequent act  for  relocating  a  portion  of  the  road  of  the  appellant 
(17  Stat.,  .5),  neither  recognize  nor  confer  a  right  to  the  lands  within 
the  Osage  eountrv. 


Appeal  from  the  Circuit  Court  oi"  the  United  States  for  the 
District  of  Kansas. 

This  is  a  bill,  filed  by  the  United  States  against  the  Leavenworth. 
Lawrence,  and  Galveston  Railroad  Company,  to  establish  its  title 
to  certain  tracts  of  land  lying  within  the  Osage  country  in  Kansas? 
which  were  certified  to  the  governor  of  Kansas  as  forming  part, 
of  the  grant  made  by  Congress  to  that  State,  to  aid  in  the  con- 


B90  Leavenworth,  etc.,  R.  R.  Co.  v.  U.S. 

striK'l ion  of  certain  railroads.  The  court  granted  the  ])rayer  of 
the  l)ill.  and  tiie  company  appealed. 

The  treaty  with  the  Great  and  Little  Osage  tribes  of  Indians  of 
June  2.  182^  (7  Stat..  240).  contains  the  following  provision  : 

"Akticlk  II.  Withui  tlie  Umits  of  the  country  above  ceded  and 
relinquished,  tliere  shall  be  reserved  to  and  for  the  Great  and  Little 
Osage  tribe  or  nation  aforesaid,  so  long  as  they  may  choose  to  occupy 
the  same,  the  following  described  tract  of  land." 

The  land  embraces,  with  other  tracts,  that  mentioned  in  the 
first  article  of  a  treaty  with  those  Indians,  which  was  concluded 
September  29,  1865  (14  Stat.,  687).     That  article  is  as  follows  : 

"The  tribe  of  the  Great  and  Little  Osage  Indians,  having  now  more 
lands  than  are  necessary  for  their  occupation,  and  all  payments  from  the 
government  to  them  under  former  treaties  having  ceased,  leaving  them 
greatly  impoverished,  and  being  desirous  of  improving  their  condition 
by  disposing  of  tlieir  surplus  lands,  do  hereby  grant  and  sell  to  the  Tinted 
States  the  lands  contained  within  tlie  following  boundaries  *  *  *  ♦ 
And  in  consideration  of  tlie  grant  and  sale  to  them  of  tlie  above-described 
lands,  the  United  States  agree  to  pay  the  sum  of  three  hundred  tliousand 
dollars,  which  sum  shall  be  placed  to  the  credit  of  said  tribe  of  Indians 
in  the  Treasury  of  the  United  States;  and  interest  thereon  at  the  rate  of 
tive  per  centum  per  annum  shall  be  paid  to  said  tribe  semi-annually,  in 
money,  clothing,  provisions,  or  sucli  articles  of  utility  as  the  Secretary 
of  tlie  Interior  may  from  time  to  time  direct.  Said  lands  shall  be  sur- 
vej^ed  and  sold  under  the  direction  of  tiie  Secretary  of  the  Interior,  on 
the  most  advantageous  terms,  for  cash,  as  public  lands  are  surveyed  and 
sold  under  existing  hiws  [including  any  act  granting  lands  to  the  State 
of  Kansas,  in  aid  of  the  construction  of  a  railroad  through  said  lands], 
but  no  pre-emption  claim  or  homestead  settlement  shall  be  recognized ; 
and,  after  reimbursing  the  United  States  the  cost  of  said  survey  and  sale, 
and  the  said  sum  of  three  hundred  thousand  dollars  placed  to  the  credit 
of  said  Indians,  the  remaining  proceeds  of  sales  shall  be  placed  in  the 
Treasury  of  the  United  States,  to  the  credit  of  the  '  civilization  fund,' 
to  be  used,  "under  the  direction  of  the  Secretary  of  the  Interior,  for  the 
education  and  civilization  of  Indian  tribes  residing  within  the  limits  of 
the  United  States  " 

The  words  in  brackets  are  an  amendment  adopted  by  the  Senate 
26th  June,  1866,  which  the  Indians  accepted  September  21  of  that 
year.     The  treaty  was  proclaimed  January  21,  1867. 

On  the  3d  of  March,  1863,  Congress  passed  "An  act  for  a  grant 
of  lands  to  the  State  of  Kansas,  in  alteimate  sections,  to  aid  in 
the  construction  of  certain  railroads  and  telegraphs  in  said  State," 
..(12  Stat.,  772),  the  first  section  of  which  is  as  follows : 

'*  That  there  be,  and  is  hereby,  granted  to  the  State  of  Kansas  for  the 


Leavenworth,  etc..  K.  R.  Co.  v.  U.  S.  391 

purpose  of  aiding  in  tlio  construction  :  First,  of  a  railroad  and  telcfiraph 
from  the  city  of  Leavenwortli.  by  way  of  the  town  of  Lawrence,  and 
via  the  Ohio  City  crossing-  of  the  Osage  river,  to  the  southern  line  of  the 
State  in  the  direction  of  Galveston  l'.ay,  in  'J'exas,  with  a  brancli  from 
Lawrence,  by  the  valley  of  the  NVakarusa  riv(;r,  to  the  point  on  the  Atchi- 
son, 'I'opekaand  Santa  Fe  Railroad,  where  f.aid  road  intersects  the  Neosho 
river;  second,  of  a  railroad  from  the  city  of  Atchison,  via  'J'opeka,  the 
capital  of  said  State,  to  the  western  line  of  the  State,  in  the  direction  of 
Fort  Union  and  Santa  Fe,  New  Mexico,  with  a  branch  from  where  this 
last-named  road  crosse.<  the  Neosho,  down  said  Neosho  valley  to  the  point 
whei-e  the  said  lirst-named  road  entei's  the  said  Neosho  valley,  every 
alternate  section  of  land  designated  by  odd  numbers  for  ten  sections  in 
width  on  each  side  of  said  road  and  each  of  its  branches.  But  in  case  it 
shall  appear  that  the  United  States  have,  when  the  lines  or  routes  Of  said 
road  and  branches  are  definitely  fixed,  sold  any  section  or  any  part 
thereof  granted  as  aforesaid,  or  that  the  right  of  pre-emption  or  home- 
stead settlenie;it  has  attached  to  the  same,  or  that  the  same  has  been 
reserved  by  the  United  States  for  any  purpose  whatever,  then  it  shall  be 
the  duty  of  the  Secretary  of  the  Interior  to  cause  to  be  selected  for  the 
purpose  aforesaid,  from  the  public  lauds  of  the  United  States  nearest  lo 
tiers  of  sections  above  specified,  so  much  land  in  alternate  sections  or 
parts  of  sections  designated  by  odd  numbers  as  shall  be  equal  to  such 
lands  as  the  United  States  have  sold,  reserved,  or  otherwise  appropriated, 
or  to  which  the  right  of  pre-emption  or  homestead  settlements  have 
attached  as  aforesaid ;  which  lands,  thus  indicated  by  odd  numbers  and 
selected  by  the  direction  of  the  Secretary  of  the  Interior  as  aforesaid, 
shall  be  held  by  the  State  of  Kansas  for  the  use  and  purpose  aforesaid  : 
Provided,  That  the  land  to  be  so  selected  shall  in  no  case  be  located 
furtlier  than  twenty  miles  from  the  lines  of  said  road  and  branches  : 
Provided,  further.  That  the  lands  hereby  granted  for  and  on  account  of 
said  road  and  branches  severally  shall  be  exclusively  applied  in  the  con- 
struction of  the  same,  and  for  no  other  purpose  whatever,  and  shall  be 
disposed  of  only  as  the  work  progresses  through  the  same,  as  in  this  act 
hereinafter  provided  :  Provided,  also,  That  no  part  of  the  land  granted 
by  this  act  shall  be  applied  to  aid  in  the  construction  of  any  railroad  or 
part  thereof  for  the  construction  of  which  any  previous  grant  of  land  or 
bonds  may  have  been  made  by  Congress;  A"d  provided,  f mi  Iter,  That  any 
and  all  lands  lie.retofore  reserved  to  the  United  States  by  any  act  of  Con- 
gress, or  in  any  other  manner  by  competent  authority,  for  the  purpose 
of  aiding  in  any  object  of  internal  improvement,  or  for  any  other  pur- 
pose whatsoever,  be,  and  the  same  are  hereby,  reserved  to  the  United 
States  from  the  operation  of  this  act,  except  so  far  as  it  may  be  found 
necessary  to  locate  the  routes  of  said  road  and  branches  through  such 
reserved  lands,  in  which  case  the  right  of  way  only  shall  be  granted, 
subject  to  the  approval  of  the  ['resident  of  the  United  States." 

The  legislature  of  Kansas  on  the  9th  of  Februar3\  1884.  passed 
an  act  aeceptin.u-  the  o-rant.  and  designated  the  appellant  to  build 


392  Leavenworth,  etc.,  R.  R.  Co.  v.  U.  S. 

the  road  from  Leavenworth  to  the  soiitiiern  line  of  the  State,  and 
to  receive  the  grant  of  land  upon  the  prescribed  terms  and  con- 
ditions. Its  authorized  route  passed  through  the  Osage  lands, 
whereof  mention  is  made  in  the  first  article  of  the  treaty  of  1865, 
and  a  map  of  the  definite  location  of  the  road  was  filed  in  the 
General  Land  Office  January  2,  1868. 

The  Commissioner  of  the  General  Land  Office,  by  letter  bearing 
date  January  21,  1868,  directed  the  register  and  receiver  of  the 
proper  office  to  withdraw  from  sale  the  odd  numbered  sections 
within  ten  miles  of  the  line  of  the  road. 

The  fourth  section  of  the  law  making  appropriations  for  the 
Indian  department,  approved  March  3,  1863  (12  Stat.,  793),  is  as 
follows  : 

"That  tlir  President  of  the  Tnited  States  be,  auclis  hereljy,  authorized 
to  enter  into  treaties  with  the  several  tribes  of  Indians,  resjjectively,  now 
residing  in  the  State  of  Kansas,  for  tlie  extinction  of  their  titles  to  lands 
held  in  common  within  said  State,  and  for  the  removal  of  such  Indians 
of  said  tribes  as  hold  their  lands  in  common,  to  suitable  localities  else- 
where within  the  territorial  limits  of  the  l-nited  States  and  outside  the 
limits  of  any  State." 

On  the  10th  of  April.  186t),  Congress  passed  the  following  joint 
resolution  (16  Stat.,  55)  : 

''^Resolved  by  the  SenMe  and  Hointe  of  Uajn-esenlatices  of  the  Uniteil  States 
of  Aiii'Ticd  III  Congress  assembled^  That  any  6(;//t/^i/e  settler  residing  upon 
any  portion  of  the  lands  sold  to  the  I'nited  States  by  virtue  of  the  tirst 
and  second  articles  of  the  treaty  concluded  between  tlie  I'nited  States 
and  the  <jreat  and  Little  Osage  tribe  of  Indians  September  twenty- 
ninth,  eighteen  hundred  and  sixty-five,  and  proclaimed  January  twenty- 
first,  eighteen  hundred  and  sixty-seven,  who  is  a  citizen  of  the  United 
states,  or  shall  have  declared  his  intention  to  become  a  citizen  of  the 
United  States,  shall  be.  and  herebj'^  is,  entitled  to  purchase  the  same,  in 
quantitj'  not  exceeding  one  liundred  and  sixty  acres,  at  the  price  of  one 
dollar  and  twenty-five  cents  per  acre,  within  two  years  from  the  passage 
of  this  act,  under  such  rules  and  regulations  as  may  be  prescribed  by 
the  Secretary  of  tin;  Interior  :  I'loridcd,  howivci ,  That  both  tlie  odd  and 
even-nnmbered  sections  of  said  lands  shall  be  subject  to  settlement  and 
sale  as  above  provided:  And  pi orided  J'uri/ier, 'VhAt  the  sixteenth  and 
thirty-sixth  sections  in  each  township  of  said  lands  shall  be  reserved  for 
State  school  purposes,  in  accordance  with  the  provisions  of  the  act  of 
admission  of  the  State  of  Kansas:  J'rorided,  /iowcrei\  That  nothing  in 
this  act  shall  be  construed  in  any  manner  aftecting  any  legal  rights  here- 
tofore vested  iu  any  other  party  or  parties." 

Settlers  made  entries  lying  wdthin  the  odd  numbered  sections, 
which  were  set  aside  and  vacated  Jan.  16,  1872,  bv  the  Secretary 


Leavenworth,  etc.,  R.  R.  Co.  v.  U.  S.  393 

of  the  Interior,  who  decided  that  the  appellant  had  a  s;rant  within 
those  lands. 

The  appellant  having  constructed  its  road  from  its  initial  point 
to  Thayer,  within  the  ceded  territory',  and  about  twenty  miles 
south  of  its  northern  boundary,  and,  desiring  to  change  its  pre- 
viously located  route  south  of  that  town,  the  legislature  of  Kansas, 
in  January,  1871.  asked  Congress  to  allow  a  relocation  of  the 
road. 

Congress  passed  an  act.  approved  April  10,  1871.  as  follows 
(17  Stat.,  5)  : 

"  An  act  to  enabled  the  Leavenworth,  Lawrence  and  Galveston 
Railroad  Company  to  relocate  a  portion  of  its  road. 

'•'•Beit  rnaded  hi/  the  Senate  dud  House  of  Rcpreaeidotives  of  tlie  I  niied 
Siide.t  of  Americ''  in  Conyess  assembled.  That  the  Leavenworth,  Law- 
rence and  Galveston  Railroad  Company,  for  the  purpose  of  improving 
its  route  and  accommodating-  the  country,  may  relocate  anj"  portion  of 
its  road  south  of  the  town  of  I'hayer.  within  the  limits  of  its  ^rant.  as 
prescribed  by  the  act  of  Congresss.  entitled  *  An  act  for  a  grant  of  lands 
to  the  estate  of  Kansas,  in  alternate  sections,  to  aid  in  the  construction 
of  certain  railroads  and  telegraphs  in  said  State.'  approved  March  tliird, 
eighteen  hundred  and  sixty-three  ;  but  not  thereby  to  change,  enlarge, 
or  diminish  said  land  gi-ant." 

Sept.  21,  1871,  the  Governor  of  Kansas  certified  to  the  Sec- 
retary of  the  Interior  that  the  road  of  the  appellant  had  been 
constructed  and  equipped  as  required  by  the  act  of  Congress  of 
March  3,  1863,  and  that  a  map  of  the  road  had  been  duly  filed, 
whereupon  certified  lists  of  the  odd  numbered  sections  of  lands 
witliin  the  railroad  limits  were  made  by  the  proper  authority  at 
Washington,  and  the  governor,  April  8,  1872,  and  March  21.  1873, 
issued  to  the  appellant,  patents  for  the  lands  mentioned  in  the 
bill  of  complaint. 

The  case  was  argued  by  Mr.  George  F.  Edmnnds  and  Mr.  P. 
Phillips  for  the  appellant,  and  by  Mr.  Solicitor  General  PJiillips, 
Mr.  Jeremiah  S.  Black,  and  Mr.  Williani  Lawrence  for  the 
appellee. 

Mr.  Justice  Davis  delivered  the  opinion  of  the  court. 

This  bill  was  brought  by  the  United  States  to  confirm  and 
establish  its  title  to  certain  tracts  of  land,  and  to  enjoin  the 
appellant  from  setting  up  any  right  or  claim  thereto.  These 
tracts,  situate   within  the  Osage  ceded  lands,   in    Kansas,    and 


594  Leavenworth,  etc.,  R.  R.  Co.  v.  U.  S. 

specifically  described  in  "  certified  lists ''  furnished  by  the  Com- 
missioner of  the  General  Land  Office,  witii  the  approval  of  the 
Secretary  of  the  Interior,  to  the  governor  of  the  State,  were 
subsetiuently  conveyed  by  the  latter  to  the  ai)pellant.  Having 
the  force  and  eftect  of  a  patent  (10  Stat.,  346).  the  lists  passed 
the  title  of  the  United  States  to  the  tracts  in  question,  if  they 
were  embraced  by  the  grant  in  aid  of  tlie  construction  of  the 
appellant's  road.  But  the  appellee  contends  that  they  were  not 
so  embraced.  If  such  be  the  fact,  inasmuch  as  public  officers 
cannot  bind  the  government  beyond  the  scope  of  their  lawful 
authority,  the  decree  of  the  circuit  court,  granting  the  prayer  of 
the  bill,  must  be  affirmed. 

The  act  of  Congress  of  March  3.  1863  (12  Stat..  772).  is  the 
starting  point  in  this  controversy.  Upon  it.  and  the  treaty  with 
the  Great  and  Little  Osage  Indians,  proclaimed  Jan.  21.  1867  (14 
vStat..  687),  the  appellant  rests  its  claim  of  title  to  the  lands  cov- 
ered by  the  patents.  It  is,  therefore,  of  primary  importance, to 
ascertain  the  scope  and  meaning  of  that  act.  The  parties  differ 
radically  in  their  interpretation  of  it.  The  United  States  main- 
tains that  it  did  not  dispose  of  the  Osage  lands,  and  that  it  was  not 
intended  to  do  so.  On  the  contrary,  the  appellant  insists  that, 
although  not  operating  upon  any  specific  tracts  until  the  road  was 
located,  it  then  took  effect  upon  those  in  controversy,  as  i\\&y,  by 
reason  of  the  extinction  of  the  Osage  title  in  the  meanwhile,  had 
become,  in  the  proper  sense  of  the  term,  public  lands.  This  dif- 
ference would  seem  to  imply  obscurity  in  the  act.  but.  be  this  as 
it  may.  the  rules  whicli  govern  in  the  interpretation  of  legislative 
grants  are  so  well  settled  by  this  court,  that  they  hardly  need  be 
reasserted.  They  apply  as  well  to  grants  of  lands  to  States,  to 
aid  in  building  railroads,  as  to  grants  of  special  privileges  to 
private  corporations.  In  both  cases,  the  legislature,  prompted  by 
the  supposed  wants  of  the  public,  confers  on  others  the  means  of 
securing  an  object,  the  accomplishment  of  which  it  desires  to 
promote,  but  declines  directly  to  undertake. 

The  main  question  in  The  Dabugue  and  Pacific  Railroad  Com- 
pany V.  Litchfield  (23  Howard,  66),  was,  whether  a  grant  to  the 
Territory  of  Iowa,  to  aid  in  the  improvement  of  the  navigation 
of  the  Des  Moines  river,  extended  to  lands  above  the  Raccoon 
Fork,  or  was  confined  to  those  below  it.  The  court,  in  deciding 
it,  say  : 

"  All  grants   of  this   description   are   strictly   construed   against  the 


Leavenworth,  etc.,  R.  R.  Co.  v.  U.  S.  395 

grantee  ;  notliing  passes  but  what  is  conveyetl  in  clear  and  explicit 
language  ;  and,  as  the  rights  here  claimed  are  derived  entirely  from  the 
act  of  ("ongress,  the  dmation  stands  on  the  same  footing  of  a  grant  by 
the  public  to  a  private  company,  the  terms  of  which  must  be  plainly 
expressed  in  the  statute,  and,  if  not  thus  expressed,  they  cannot  be 
implied." 

Tins  wrant,  like  that  to  Iowa,  was  made  for  tlie  purpose  of  aid- 
in?  a  work  of  internal  improvement,  and  does  not  extend  beyond 
the  intent  it  expresses.  It  should  be  neither  enlarged  by  ingeni- 
ous reasoning,  nor  diminished  by  strained  construction.  The 
interpretation  must  be  reasonable,  and  such  as  will  give  effect  to 
the  intention  of  Congress.  This  is  to  be  ascertained  from  the 
terms  employed,  the  situation  of  the  parties,  and  the  nature  of 
the  grant.  If  these  terms  are  plain  and  unambiguous,  there  can 
be  no  difficulty  in  interpreting  them  ;  but.  if  they  admit  of  differ- 
ent meanings — one  of  extension,  and  the  other  limitation — they 
must  be  accepted  in  a  sense  favorable  to  the  grantor. 

And  if  rights  claimed  under  the  government  be  set  up  against 
it.  they  must  be  so  clearly  defined  that  there  can  be  no  question 
of  the  purposes  of  Congress  to  confer  them.  In  other  words, 
what  is  not  given  expressly  or  by  necessary  implication  is  with- 
held. {Dubuque  unci  Pacific  Railroad  Company  v.  Litdi field, 
.supra ;  Rice  v.  Railroad  Company,  1  Black,  380  :  Charles  River 
Brid'je  v.  Warren  Bridge,  11  Pet.,  120.) 

Applying  these  rules  to  this  controversy,  there  does  not  seem 
to  be  any  difficulty  in  deciding  it.  Whatever  is  included  in  the 
exception  is  excluded  from  the  grant ;  and  it  therefore  often 
becomes  important  to  ascertain  what  is  excepted  in  order  to 
determine  what  is  granted.  But  if  the  exception  and  the  proviso 
were  omitted,  the  language  used  in  the  bod}-  of  this  act  cannot 
be  construed  to  include  the  Osage  lands. 

It  creates  an  immediate  interest,  and  does  not  indicate  a  pur- 
pose to  give  in  future.  "There  be  and  is  hereby  granted"  are 
words  of  absolute  donation,  and  import  a  grant  in  prcsenti.  This 
court  has  held  that  they  can  have  no  other  meaning  ;  and  the  land 
department,  on  tliis  interpretation  of  them,  has  uniformh'^  admin- 
istered every  previous  similar  grant.  {Railroad  Company  v.  SmifJi, 
9  Wall.,  95;  ScJivlenberg  y.  Harriman, '2\  Wall..  60  :  1  Lester, 
513;  8  Opin..  257;  11  Opin..  47.)  They  vest  a  present  title  in 
the  State  of  Kansas,  though  a  survey  of  lands  and  a  location  of 
the  road  are  necessary  to  give  precision  to  it.  and  attach  it  to  any 
particular  tract.     The  grant  then  becomes  certain,  and  by  rela- 


396  Leavenworth,  etc.,  R.  R.  Co.  v.  U.  S. 

tion  has  the  same  efl'eet  upon  tlie  selected  parcels  as  if  it  had 
specifically  described  them.  In  other  words,  the  grant  was  a  float 
until  the  line  of  the  road  should  be  definitelj-  fixed.  But  did 
Congress  intend  that  it  should  reach  these  lands  ?  Its  general 
terms  neither  include  nor  exclude  them.  Every  alternate  section 
designated  by  odd  numbers  within  certain  defined  limits  is  granted  ; 
but  only  the  i)ublic  lands  owned  absolutely  ))y  the  United  States 
are  subject  to  survey  and  division  into  sections,  and  to  them  alone 
this  grant  is  applicable.  It  embraces  such  as  could  be  sold  and 
enjoyed,  and  not  those  which  the  Indians,  pursuant  to  treaty  stipu- 
lations, were  left  free  to  occupy.  {Rice  v.  Railroad  Co.,  svpra.) 
Since  the  land  system  was  inaugurated  it  has  been  the  settled 
policy  of  the  government  to  sell  the  public  lands  at  a  small  cost 
to  individuals,  and  for  the  last  twenty-five  years  to  grant  them  to 
States  in  large  tracts  to  aid  in  works  of  internal  improvement ; 
but  these  grants  have  always  been  recognized  as  attaching  only 
to  so  much  of  the  public  domain  as  was  subject  to  sale  or  other 
disposal,  although  the  roads  of  manj^  subsidized  companies  pass 
through  Indian  reservations. 

Such  grants  could  not  be  otherwise  construed  ;  for  Congress- 
cannot  be  supposed  to  have  thereby  intended  to  include  land 
previously  appropriated  to  another  purpose,  unless  there  be  an 
express  declaration  to  that  effect.  A  special  exception  of  it  was 
not  necessary,  because  the  policy  which  dictated  them  confined 
them  to  land  which  Congress  could  rightfully  bestow  without 
disturbing  existing  relations  and  producing  vexatious  conflicts. 
The  legislation  which  reserved  it  for  any  purpose,  excluded  it 
from  disposal  as  the  public  lands  are  usually  disposed  of.  and 
this  act  discloses  no  intention  to  change  the  long-continued  prac- 
tice with  respect  to  tracts  set  apart  for  the  use  of  the  govern- 
ment or  of  the  Indians.  As  the  transfer  of  any  part  of  an  Indian 
reservation  secured  by  treaty  would  also  involve  a  gross  breach 
of  the  public  faith,  the  presumption  is  conclusive  that  Congress 
never  meant  to  grant  it. 

"A  thing  which  is  within  the  letter  of  the  statute  is  not  within 
the  statute,  unless  it  be  within  the  intention  of  the  makers."  (1 
Bac.  Abr..  247.)  The  treaty  of  June  2,  1825,  secured  to  the 
Osages  the  possession  and  use  of  their  lands  *'  so  long  as  they 
may  choose  to  occupy  the  same,"  and  this  treaty  was  only  the 
substitute  for  one  of  an  earlier  date  with  equal  guarantees. 

As  long  ago  as  The  Cherol'ee  Nation  v.  Georgia,  5  Pet.,  1,  this- 


Leavenworth,  etc.,  R.  R.  Co.  v.  U.  S.  397 

court  said  that  the  Indians  are  acknowledged  to  have  the  unques- 
tionable right  to  the  lands  they  oocupv  until  it  shall  be  extinguished 
by  a  voluntary  cession  to  the  government ;  and  recently',  in  United 
States  V.  Cook,  19  Wall..  591,  that  right  was  declared  to  be  as 
sacred  as  the  title  of  the  United  States  to  the  fee.  Unless  the 
Indians  were  deprived  of  the  power  of  alienation,  it  is  easy  to 
see  that  they  could  not  peaceably  enjoy  their  possessions  with  a 
<iominant  race  constantly  pressing  on  their  frontier.  With  the 
ultimate  fee  vested  in  the  United  States,  coupled  with  the  ex- 
clusive privilege  of  bu3ing  that  right,  the  Indians  were  safe 
against  intrusion,  if  the  government  discharged  its  dut}'  to  them. 
This  it  has  indicated  a  willingness  to  do  ;  Tor  in  1834  an  act  was 
passed  (4  Stat.,  729,  sec.  11)  prohibiting,  under  heavy  penalties,  a 
settlement  on  the  lands  of  an  Indian  triV)e,  or  even  an  attempt  to 
surve}'  them.  This  perpetual  riglit  of  occupancy,  with  the  cor- 
relative obligation  of  the  government  to  enforce  it,  negatives  the 
idea  that  Congress,  even  in  the  absence  of  any  positive  stipula- 
tion to  protect  the  Osages,  intended  to  grant  their  land  to  a  rail- 
road company,  either  absolutely  or  cuvi  onere.  For  all  practical 
purposes  they  owned  it ;  as  the  actual  right  of  possession,  the 
only  thing  they  deemed  of  value,  was  secured  to  them  b}'  treaty, 
until  they  should  elect  to  surrender  it  to  the  United  States.  In 
the  free  exercise  of  their  choice  they  might  hold  it  forever,  and 
whatever  changed  this  condition  or  interfered  with  it  violated  the 
guarantees  under  which  they  had  lived.  The  United  States  has 
frequently  bought  the  Indian  title  to  make  room  for  civilized 
men — the  pioneers  of  the  wilderness — but  it  has  never  engaged 
in  advance  to  do  so,  nor  was  constraint  (in  theory  at  least)  placed 
ui)on  the  Indians  to  bring  about  their  acts  of  cession.  This  grant, 
however,  if  it  took  effect  on  these  lands,  carried  with  it  the  obliga- 
tion to  extinguish  the  Indian  right.  This  will  be  conceded,  if  a 
complete  title  of  them  were  granted  :  but  it  is  equally  true  if  only 
the  fee  subject  to  that  right  passed.  It  would  be  idle  to  grant 
what  could  be  of  no  practical  benefit  unless  something  be  done 
which  the  grantee  is  forl)idden  but  which  the  grantor  has  i)ower 
to  do  :  and  this  applies  with  peculiar  force  to  a  grant  like  this. 
intended  to  be  immediately  available  to  the  grantee. 

The  lands  were  expected  to  be  used  in  the  construction  of  the 
road  as  it  progressed,  but  they  could  neither  be  sold  nor  mort- 
gaged so  long  as  a  valid  adverse  right  of  occupancy  attached  to 
them.      The  grantee  was  prohibited   fi-om   negotiating  with  the 


398  Leavenworth,  etc..  R.  R.  Co.  v.  U.  S. 

Indians  at  all ;  bnt  the  United  States  miglit,  by  treaty,  pnt  an 
end  to  that  ri^lit.  As  Con«;ress  cannot  be  snpposed  to  do  a  vain 
thing,  the  present  grant  of  the  fee  would  be  an  assurance  to  the 
grantee  that  the  full  title  should  be  eventually  enjoyed.  This 
would  be  in  effect  a  transfer  of  the  possessory  right  of  the  Indians 
before  acquiring  it — a  poor  way  of  observing  a  treaty  stipulation. 
How  could  they  treat  on  an  equality  with  the  United  States  under 
such  circumstances  ?  They  would  be  constrained  to  sell,  as  the 
United  States  was  obliged  to  buy.  Although  it  might  appear  that 
the  sale  was  voluntary,  it  would,  in  fact,  be  compulsory.  Can 
the  court,  in  the  absence  of  words  of  unmistakable  import,  pre- 
sume that  an  act  so  injurious  to  the  Indians  was  intended  ?  The 
grant  is  silent  as  to  such  a  purpose  ;  but  if  it  was  to  take  effect 
in  the  Osage  country  on  the  surrender  of  the  Indian  title,  it  would 
have  so  delared.  It  is  true  the  recognized  route  of  the  road 
passed  through  that  country ;  but  many  other  roads,  aided  by 
similar  gi-ants,  ran  through  such  reservations,  and  in  no  case  before 
this  has  land  included  in  them  been  considered  as  falling  within 
any  grant,  whether  the  Indian  riglit  was  extinguished  before  or 
after  the  definite  location  of  the  road.  And  if  Congress  really 
meant  tliat  this  grant  should  include  any  part  of  the  reservation 
of  -the  Usages,  it  would  at  least  have  secured  an  adequate  indem- 
nity to  them,  and  sanctioned  a  delay  in  locating  tlie  road  until 
the  surrender  of  their  right  should  be  made.  Instead  of  this,  the 
act  contains  no  provision  for  them,  and  contemplates  that  the  road 
shall  be  finished  as  soon  as  practicable.  This  is  inconsistent  with 
a  purpose  to  grant  their  land  ;  for  they  had  not  proposed  to  relin- 
quish it,  nor  had  the  President  encouraged  them  to  do  so.  In  the 
face  of  this  it  is  hard  to  believe  that  Congress  nieant  to  hold  out 
inducements  to  the  company  to  postpone  fixing  the  route  of  their 
road  until  a. contingency  should  happen  which  the  act  did  not  con- 
template. Besides,  Congress  was  bound  by  every  consideration 
affecting  the  condition  of  the  Indians  to-  retain  their  lands  within 
its  own  control.  But  it  is  said  that  the  Indian  appropriation  bill 
became  a  law  the  same  day  as  the  act  under  consideration,  and 
that  it  authorized  the  President  to  enter  into  negotiations  with  the 
several  tri])es  of  Indians  residing  in  Kansas  for  the  extinction  of 
their  title  and  for  their  removal.  This  is  true  ;  but  it  does  not 
prove  any  purpose  inconsistent  with  the  policy  of  the  act  of  1837 
(5  Stat.,  135),  which  contemplates  the  sale  of  all  Indian  lands 
ceded  to  the  government.    If  Congress  had  intended  to  extinijuish 


Leavenworth,  etc.,  R.  R.  Co.  v.  U.  S.  399- 

the  Osage  title  for  the  benefit  of  the  appellant,  it  would  have  spoken 
directl3%  as  it  did  in  the  Pacific  Railroad  act,  and  not  in  an  indirect 
way  near  the  end  of  one  of  the  general  appropriation  bills.  The 
Congress  that  made  this  grant  made  one  eight  months  before  to 
aid  in  the  construction  of  a  railroad  from  the  ]\Iissouri  river  to  the 
Pacific  ocean,  and  of  other  roads  connecting  therewith,  in  which 
it  agreed  to  extinguish  as  rapidly  as  possible  the  Indian  title  for 
the  oenefit  of  the  companies. 

This  was  necessary,  although  tlieir  road  ran  tlirough  territory 
occupied  by  wild  tribes  ;  but  this  passed  through  a  reservation 
secured  ]>y  treaty,  and  occupied  by  Indians  at  least  partially 
civilized.  A  transfer  of  any  part  of  it  would  be  wr^ng;  and,  as 
the  act  does  not  mention  it,  there  is  ijo  reason  to  suppose  that 
Congress,  in  making  the  grant,  contemplated  the  extinction  of  the 
Indian  title  at  all.  Besides,  the  avowed  object  of  the  provision 
in  the  appropriation  act  was  to  remove  the  Indians.  If  any 
ulterior  hidden  purpose  was  to  be  thereby  subserved.  Congress  is 
not  responsible  for  it,  nor  can  it  affect  this  case. 

The  language  used  is  to  be  taken  as  expressing  the  legislative 
intention,  and  the  large  inference  attempted  to  be  drawn  from  it 
is  not  authorized.  It  does  not  follow,  because  Congress  sanctioned 
negotiations  to  effect  the  removal  of  the  Indians  from  Kansas,  as 
a  disturbing  element  of  her  population,  and  to  procure  their  land 
for  settlement,  that  it  also  contemplated  obtaining  the  title  of  any 
tribe  in  order  to  convey  it  by  this  grant.  The  policy  of  removal, 
a  favorite  one  with  the  government,  and  always  encouraged  by  it, 
looked  to  the  extinguishment  of  the  Indian  title  for  the  general 
good,  and  not  for  the  special  benefit  of  any  particular  interest. 
But  the  two  acts  have  no  necessary  connection  with  each  other, 
because  they  happened  to  be  approved  on  the  3d  of  March.  The 
laws  signed  by  the  President  tliat  day  occupy  one  hundred  pages 
of  the  twelfth  volume  of  the  statutes. 

We  are  not  without  authority  that  the  general  words  of  this 
grant  do  not  include  an  Indian  reservation.  In  WUcoxy.  Jackson, 
13  Pet.,  498,  the  President,  by  proclamation,  had  ordered  the  sale 
of  certain  lands,  without  excepting  therefrom  a  militarry  reserva- 
tion included  within  their  boundaries.  The  proclamation  was 
based  on  an  act  of  Congress  supposed  to  authorize  it ;  but  this 
court  held  that  the  act  did  not  apply,  and  then  added  :  "We  go 
further,  and  say,  tliat  whenever  a  tract  of  land  shall  have  been 
once  legally  appropriated  to  any  purpose,  from  that  moment  the 


400  Leavenworth,  etc.,  R.  R.  Co.  v.  U.  S. 

laud  thus  appropriated  bet-oines  severed  from  the  mass  of  public 
lands  ;  and  that  no  subsequent  law.  proclamation,  or  sale  would 
be  construed  to  embrace  or  operate  upon  it.  although  no  reserva- 
tion were  made  of  it." 

It  may  be  urged  that  it  was  not  necessary  in  deciding  that  case 
to  pass  upon  the  question  ;  but,  however  this  may  be.  the  princi- 
ple asserted  is  sound  and  reasonable,  and  we  accept  it  as  a  rnle 
of  construction. 

The  supreme  courts  of  Wisconsin  and  Texas  have  adopted  it  in 
cases  where  the  point  was  necessarily  involved.  {State  v.  Deles- 
denier.  7  Tex..  76  :  Spuvldiny  v.  Mart  in.  11  Wis.,  274.)  It  applies 
with  more  force  to  Indian  than  to  military  reservations.  The 
latter  are  the  absolute  property  of  the  government ;  in  the  former, 
other  rights  are  vested.  Congress  cannot  be  snpposed  to  grant 
them  by  a  subsequent  law,  general  in  its  terms.  Specific  lan- 
guage, leaving  no  room  for  doubt  as  to  the  legislative  will,  is  re- 
quired for  such  a  purpose. 

But  this  case  does  not  rest  alone  on  the  words  of  description  in 
the  grant :  for  the  Osage  lands  are  expressly  excepted  by  force 
of  the  following  proviso  : 

"That  any  and  all  land^  lieretofore  reserved  to  the  United  States,  bj' 
any  act  of  '  ono-ress,  or  in  anj-  other  manner  bj^  competent  authoritj^.  for 
the  purpose  of  aiding-  in  any  object  of  internal  improvement,  "r  fi'V  any 
nth'  r  j,iir/)(>.s-e  irhaixnever,  be  and  the  same  are  hereby,  reserved  to  the  I '  nited 
States  from  the  operation  of  this  act,  except  so  far  as  it  may  be  found 
necessary  to  locate  the  routes  of  said  road  and  branches  through  such 
reserved  lands;  in  which  case,  the  right  of  way  only  shall  be  granted, 
subject  to  the  approval  of  the  President  of  the  United  States.'' 

In  construing  a  public  grant,  as  we  have  seen,  the  intention  of 
the  grantor,  gathered  from  the  wliole  and  every  part  of  it,  must 
prevail.  If.  on  examination,  there  are  doubts  about  that  intention 
or  the  exteiit  of  the  grant,  tiie  government  is  to  receive  the  benefit 
of  them.  The  proviso  has,  in  our  opinion,  no  doubtful  meaning. 
Attaciied  in  substantially  the  same  form  to  all  raib-oad  land-grant 
acts  passed  since  1850,  it  was  employed  to  malve  plainer  the  pur-^ 
pose  of  Congress  to  exclude  from  tlieir  operation  lands  which,  by 
reason  of  prior  appropriation,  were  not  in  a  condition  to  be  granted 
to  a  State  to  aid  it  in  building  railroads.  It  would  be  strange, 
indeed,  if,  by  such  an  act.  Congress  meant  to  give  away  property 
which  a  just  and  wise  polic}'  had  devoted  to  other  purposes.  That 
lands  dedicated  to  the  use  of  the  Indians  should,  upon  every 
principle  of  natural  right,  be  carefully  guarded  by  the  government. 


Leavenwokth.  etc.,  K.  K.  Co.  /•.  U.  S.  401 

and  .saved  from  a  possilile  irrant.  is  a  })roposition  which  will  com- 
mand universal  assent.  What  ought  to  ))e  done,  has  been  done. 
The  proviso  was  not  necessary  to  do  it,  hut  it  serves  to  fix  more 
definitely  what  is  granted  b}^  what  is  excepted.  All  lands 
"heretofore  reserved."  that  is.  reserved  before  the  passage  of  the 
act,  "by  competent  authority,  for  auy  purpose  whatsoever."  are 
excepted  by  the  proviso.  This  language  is  broad  and  compre- 
hensive. It  unquestionably  covers  these  lands.  They  had  been 
reserved  by  treat)'^  before  the  act  of  1863  was  passed.  It  is  said, 
however,  that  having  been  reserved,  not  "to  the  United  States." 
but  to  the  Osages.  they  are,  therefore,  not  within  the  terras  of  the 
proviso.  This  position  is  untenable.  It  would  leave  the  proviso 
without  effect,  because  all  the  reservations  through  which  this 
road  was  to  pass  were  Indian. 

This  fact  was  recognized,  and  the  riffht'  of  way  granted  through 
them,  subject  to  the  approval  of  the  President.  Through  his 
negotiations  with  the  Indians,  he  secured  it  in  season  for  the 
operations  of  the  company.  Besides,  th.ere  were  no  other  lands 
over  which  he  could  exercise  any  authority  to  obtain  that  right. 
And  why  grant  it  by  words  vesting  its  immediate  enjoyment, 
unless  it  was  contemplated  that  the  roads  would  be  constructed 
during  the  existence  of  those  reservations  ?  But  the  verbal 
criticism,  that  these  lands  were  not,  within  the  meaning  of  tliis 
proviso,  reserved  "  to  the  United  States."  is  unsoimd.  The  treaty 
reserved  them  as  much  to  one  as  to  the  other  of  the  contracting 
parties.  Both  were  interested  therein,  and  had  title  thereto.  In 
one  sense  they  were  reserved  to  the  Indians  :  but.  in  another  and 
broader  sense,  to  the  United  States  for  the  use  of  the  Indians. 

Every  tract  set  apart  for  special  uses  is  reserved  to  the  govern- 
ment, to  enable  it  to  enforce  them.  There  is  no  difference,  in  this 
respect,  whether  it  be  appropriated  for  Indian  or  for  other  purposes. 
There  is  an  equal  obligation  resting  on  the  government  to  require 
that  neither  class  of  reservations  be  diverted  from  the  uses  to 
which  it  was  assigned.  Out  of  a  vast  tract  of  land  ceded  by  the 
Osages,  a  certain  portion  was  retained  for  their  exclusive  enjoy- 
ment, as  long  as  thej'^  chose  to  possess  it. 

The  government  covenanted  that  they  should  not  be  disturbed, 
except  with  their  voluntary  consent  first  obtained  :  and  a  grant 
of  their  land  would  be  such  a  manifest  breach  of  this  covenant, 
that  Congress,  in  order  to  leave  no  possible  room  for  doubt, 
specially  excepted  it  by  the  proviso.    A  constructicm  which  would 

•25 


402  Leavenworth,  etc.,  R.  R.  Co.  v.  U.  S. 

limit  it  to  laud  set  apart  for  military  posts  and  the  like,  and  deny 
its  application  to  that  appropriated  for  Indian  occupation,  is 
more  subtle  than  sound.  This  proviso,  or  rather  one  couched  in 
the  same  languasje,  was  the  subject  of  consideration  by  this  court, 
and  received  a  liberal  interpretation,  instead  of  the  technical  and 
narrow  one  claimed  for  it  by  the  appellant.  Wolcott  v.  Des  Moines 
Navigation  Company,  5  Wall.,  681,  was  a  controversy  concerning 
the  title  to  certain  lands,  which,  it  was  conceded,  were  covered  by 
a  grant,  unless  excluded  by  the  proviso  thereunto  annexed.  The 
court  held  that  they  were  excluded,  although  they  had  not  been 
reserved  "  to  the  United  States."'  They  had  been,  in  fact,  reserved 
by  the  executive  officers  of  the  government,  upon  a  mistaken  con- 
struction of  a  prior  grant  made  by  the  United  States  to  the  State 
of  Iowa.  This  decision  was  re-affirmed  in  Williams  v.  Baker,  17 
Wall.,  144. 

The  scope  and  effect  of  the  act  of  1863,  cannot,  in  our  opinion, 
be  mistaken. 

The  different  parts  harmonize  with  each  other,  and  present  in  a 
clear  light  the  scheme  as  an  entirety.  Kansas  needed  railroads 
to  develop  her  resources,  and  Congress  was  willing  to  aid  her  to 
build  them,  by  a  grant  of  a  part  of  the  national  domain,  in  a  con- 
dition at  the  time  to  be  disposed  of.  It  was  accordingly  made  of 
alternate  sections  of  land  within  ten  miles  on  each  side  of  the 
contemplated  roads.  Formerly,  lands  which  would  probably  be 
affected  b}^  a  grant  were,  as  soon  as  it  was  made,  if  not  in  advance 
of  it,  withdrawn  from  market.  But  experience  proved  that  this 
practice  retarded  the  settlement  of  the  country,  and,  at  the  date 
of  this  act,  the  rule  was  not  to  withdraw  them  until  the  road 
should  be  actually  located.  In  this  way,  the  ordinary  working  of 
the  land  system  was  not  disturbed.  Private  entries,  pre-emption, 
and  homestead  settlements,  and  reservations  for  special  uses,  con- 
tinued within  the  supposed  limits  of  the  grant,  the  same  as  if  it 
had  not  been  made.  But  they  ceased  when  the  routes  of  the 
roads  were  definitely  fixed  ;  and  if  it  then  appeared  that  a  part  of 
the  lands  within  those  limits  had  been  either  sold  at  private 
entry,  taken  up  by  pre-emptors,  or  reserved  by  the  United  States, 
an  equivalent  was  provided.  The  companies  were  allowed  to 
select,  under  the  direction  of  the  Secretary  of  the  Interior,  in  lieu 
of  the  lands  disposed  of  in  either  of  these  ways,  an  equal  number; 
of  odd  sections  nearest  to  those  granted,  and  within  twenty  miles  of 
the  line  of  the  road.     Having  thus  given  lands  in  place  and  by 


Leavenworth,  etc.,  H.  R.  Co.  v.  U.  S.  403 

way  of  indemnity,  Congress  expressly-  declared,  what  the  act 
alread}^  implied,  that  lands  otherwise  appropriated  wlien  it  was 
passed  were  not  subject  to  it. 

Tlie  indemnity  chuise  has  been  insisted  upon.  We  have  before 
said  that  the  grant  itself  was  in  prceseiUi,  and  covered  all  the  odd 
sections  which  should  appear,  on  the  location  of  the  road,  to  have 
been  within  the  grant  wlien  it  was  made.  The  right  to  them  did 
not,  however.  dei>end  on  such  location,  but  attached  at  once  on 
the  making  of  the  grant.  It  is  true  they  could  not  be  identified 
until  the  line  of  the  road  was  marked  out  on  the  ground ;  but,  as 
soon  as  this  was  done,  it  was  easy  to  find  them.  If  the  compajiy 
did  not  ()l>tain  all  of  them  within  the  original  limit,  by  reason  of 
the  power  of  sale  or  reservation  retained  by  the  United  States  ;  it 
was  to  be  compensated  by  an  equal  amount  of  substituted  lands. 
The  latter  could  not,  on  any  contingency,  be  selected  within  that 
limit :  and  the  attempt  to  give  this  effect  to  the  clause  receives 
no  support,  either  in  the  scheme  of  the  act  or  in  anything  that 
has  been  urged  by  counsel.  It  would  be  strange,  indeed,  if  the 
clause  had  been  intended  to  perform  the  office  of  making  a  new 
grant  within  the  ten-mile  limit,  or  enlarging  the  one  alread}'  made. 
Instead  of  this,  the  words  employed  show  clearly  that  its  only 
purpose  is  to  give  sections  beyond  that  limit,  for  those  lost  within 
it  by  the  action  of  the  government  between  the  date  of  the  grant 
and  the  location  of  the  road.  This  construction  gives  effect  to 
the  whole  statute,  and  makes  each  part  consistent  with  the  other. 
But.  even  if  the  clause  were  susceptible  of  a  more  extended  mean- 
ing, it  is  still  subject  to,  and  limited  by,  the  provisos  which  excludes 
all  lands  reserved  at  the  date  of  the  grant,  and  not  simply  those 
found  to  be  reserved  when  the  line  of  the  road  shall  be  definitively 
fixed.  The  latter  contingency  had  been  provided  for  in  the 
clause  ;  and,  if  the  proviso  did  not  take  effect  until  that  time,  it 
would  be  wholly  unnecessary.  And  these  lands  being  within  tlie 
terms  of  the  proviso,  as  we  construe  it,  it  follows  that  they  are 
absolutely  and  unconditionally  excepted  from  the  grant ;  and  it 
makes  no  difference  whether  or  not  they  subsequently  became  a 
part  of  the  public  lands  of  the  country. 

But  the  appellant  claims  that  these  lands  were  subjected  to  this 
grant  bj^  virtue  of  the  Senate  amendment  to  the  Osage  treaty, 
concluded  September  2t),  1865,  and  proclaimed  in  1867.  If  the 
amendment  has  this  effect,  it  is  entirely  inconsistent  with  the 
purposes  of  the  treaty.    The  United  States  had  not  made  an  abso- 


404  Leavenworth,  etc.,  R.  R.  Co.  v.  V.  S. 

lute,  or  a  contingent  grant  of  the  lands.  There  was.  manifestly, 
no  reason  why  the  Osages  should  bestow  a  gratuity  on  the  appel- 
lant :  and  the  treaty  itself,  as  originally  framed,  disclaimed  such 
an  intention.  Wiiatever  they  did  give  was  limited  to  persons 
from  whom  they  liad  received  valuable  services,  and  they  so 
expressly  stated.  Their  annuities  liad  ceased.  Confessed  pov- 
erty, and  the  desire  tQ  improve  their  condition,  induced  them  to 
negotiate.  They  had  a  surplus  of  land,  but  no  money.  The 
United  States,  in  pursuance  of  a  long-settled  policy,  desired  to 
open  that  land  to  settlement.  Induced  by  these  considerations, 
the  parties  concluded  a  treaty,  which  was  submitted  to  the  Senate 
for  its  constitutional  action. 

By  the  first  article  the  Osages  ceded,  on  certain  conditions,  a 
large  and  valuable  part  of  their  possessions.  The  Unitecl  States 
was  required  to  survey  and  sell  it  on  the  most  advantageous 
terms,  for  cash,  in  conformity  with  the  system  then  in  operation 
for  surveying  and  selling  the  public  lands,  with  the  restriction 
that  neither  pre-emption  claims  nor  homestead  settlements  were 
to  be  recognized.  The  proceeds,  after  deducting  enough  to  repay 
advances  and  expenses,  were  to  be  placed  in  the  treasury  to  the 
credit  of  the  ■' civilization  fund."  for  the  benefit  of  the  Indian 
tribes  throughout  the  country. 

The  moneys  arising  from  the  sale  of  the  lands  ceded  b}-^  the 
second  article,  were  for  the  exclusive  benefit  of  the  Osages  ;  but 
the  relation  of  tlie  United  States  to  the  property  in  each  case  is 
the  same.  And  it  can  make  no  diiference  that  the  trust  in  one  is 
specifically  set  forth,  and  in  the  other,  is  to  be  ascertained  from 
the  general  scope  of  the  language.  It  is  an  elementary  principle 
that  no  particular  form  of  words  is  necessary  to  create  a  trust. 
In  neither  case  is  the  government  a  beneficiary.  In  both,  the 
fund  is  to  be  applied  to  promote  the  well  being  of  the  Indians, 
which  it  has  ever  been  the  cherished  policy  of  Congress  to  secure. 

Neither  party  contemplated  that  a  part  of  the  lands  was  to  be 
given  to  a  corpors^tion.  to  aid  in  building  a  railroad.  And,  if  the 
appellant  gets  any  of  them,  it  is  manifest  that  the  treaty  cannot  be 
carried  into  effect,  nor  can  the  trusts  therein  limited  and  declared. 
1)6  executed.  As  neither  the  act  of  1863,  nor  the  treaty  in  its 
original  shape,  grants  the  tracts  in  controversy,  the  inquiry  ])re- 
sents  itself  as  to  the  effect  of  the  amendment. 

The  provision  on  this  subject,  with  the  amendment  in  brackets, 
reads  as  follows  : 


Leavenworth,  etc.,  R.  R.  Co.  v.  U  S.  405 

'•Sjiiil  luiuN  shall  be  surveyed  and  sold  under  the  du-ection  of  the 
SecH'tary  of  the  Interior,  on  the  most  advanta<?eous  terras,  for  cash,  as 
public  lands  are  surveyed  and  sol  I  under  existing  laws  [including 
any  act  granting  lands  to  the  State  of  Kansas,  in  aid  of  the  construction 
of  a  railroad  througii  said  lands] ;  but  no  pre-emption  claim  or  homestead 
settlement  shall  be  recognized.'' 

Tested  by  its  literal  ineaniug  and  grammatical  structure,  this 
amendment  relates  solel}^  to  the  survey  and  sale  of  the  lands,  and 
cannot  be  extended  further.  It  was  doubtless  so  explained  to  the 
Indians  when  they  accepted  it.  But,  obscure  as  it  is.  and  indefi- 
nite as  is  its  purport,  it  was  intended  to  do  more  than  declare 
what  laws  slionld  be  observed  in  surveying  and  selling  the  lands- 
But  wliatever  purpose  it  was  meant  to  serve,  it  obviously  does 
not.  proprio  vigore.  make  a  grant.  To  do  this,  other  words  must 
be  introdnced :  but  treaties,  like  statutes,  must  rest  on  the  words 
used — ••  nothing  adding  thereto,  nothing  diminishing." 

In  lle.r  v.  BnrreJl  (12  Ad.  &.  Ell.,  468),  Patterson,  J.,  said  :  ••  I 
see  the  necessity  of  not  importing  into  statutes,  words  which  are 
not  found  there.  Such  a  mode  of  interpretation  only  gives  occa- 
sion to  endless  difficulty."  Courts  have  always  treated  the 
subject  in  the  same  way,  when  asked  to  supply  words  in  order  to 
give  a  statute  a  particular  meaning,  which  it  would  not  bear  with- 
out them.  [Uex  v.  Poor.  Law  Comm'rs,  6  Ad.  &  Ell.,  7  ;  Everett 
V.  WelU,  2  Scott  (N.  C).  531 ;   Green  v.  Wood,  7  Q.  B.,  178.) 

It  is  urged  that  the  amendment,  if  it  does  not  make  a  grant, 
recognizes  one  already  made.  It  does  not  say  so ;  and  we  can- 
not suppose  that  the  Senate,  when  it  advised  and  consented  to 
the  ratification  of  the  treaty  with  that,  among  other  amendments, 
intended  that  the  Indians,  by  assenting  to  them,  should  recognize 
a  grant  that  had  no  existence.  Information  was,  doubtless,  com- 
municated to  that  body  that  tliere  were  grants  of  some  of  the 
ceded  lands  which  might  interfere  with  the  absolute  disposal  of 
them,  required  by  the  treaty.  If  there  were  such  grants,  it  was 
obviously  proper  that  the  treaty  should  be  so  modified  as  not  to 
conflict  with  rights  vested  under  them.  But  the  Senate  left  that 
(question  to  the  proper  tribunal,  and  declared,  in  etfect,  that  such 
grants,  if  made  by  existing  laws,  should  be  respected  in  the  dis- 
position of  the  lancjs.  On  this  interpretation,  the  amendment  in 
question  is  consistent  with  the  treaty.  But  if  that  contended  IV)r 
by  the  appellant  be  correct,  the  treaty  is  practically  defeated.  If 
no  such  grant  had  been  made,  lands  would  be  taken   from  the 


406  Leavenworth,  etc.,  R.  E.  Co.  v.  U.  S. 

Osages  without  either  their  consent  or  that  of  Congress,  and 
appropriated  to  building  railroads,  for  no  one  can  fail  to  see  that 
interested  outside  parties,  having  access  to  these  ignorant  Indians? 
would  explain  the  amendment  as  a  harmless  thing.  In  concluding 
the  treat3\  neither  part}^  thereto  supposed  that  any  grant  attached 
to  the  lands,  for,  as  we  have  seen,  all  were  to  he  sold,  and  the 
fund  invested.  Did  the  Senate  intend  to  charge  them  with  a 
grant,  whether  it  had  reall}^  been  made  or  not  ?  If  so,  the  treaty 
would  have  been  altered  to  conform  with  so  radical  a  change  in 
its  essential  provisions,  by  accepting  the  lands  covered  by  the 
grant,  instead  of  directing  them  to  be  sold.  Why  sell  all,  if  the 
status  of  a  part  was  fixed  absolutely  by  the  amendment  ?  In 
such  a  case,  justice  to  the  companies  required  that  thej'^  should 
have  the  lands  granted  to  them.  The  United  States  should,  also, 
to  this  extent,  be  relieved  of  its  trust.  But,  if  the  amendment 
was  designed  to  operate  onW  in  the  contingencj^  that  a  grant  had 
been  made,  there  was  no  occasion  to  alter  the  treaty,  further  than 
to  say,  as  it  now  substantially  does  say,  that  the  companies,  if 
entitled  to  the  lauds,  should  get  them.  No  objection  could  justly 
be  made  to  such  a  provision.  It  preserved  vested  rights,  but  did 
not  create  new  ones.  Without  solving  the  problem  whether  or 
not  a  grant  had  been  made,  it  decided  that  the  rights  of  the  com- 
panies, if  any  they  had.  should  not  be  barred  or  impaired  by 
reason  of  the  general  terms  of  the  treaty.  It  is  argued  that  the 
Osages  are  not  injured  by  taking  a  portion  of  their  countrj',  as 
an  enhanced  value  would  be  given  to  the  remainder  b}'  the  con- 
struction of  the  appellant's  road.  This  is  taking  for  granted 
what  may  or  may  not  be  true.  Besides,  they  cannot  be  despoiled 
of  any  part  of  their  inheritance  upon  such  a  fallacious  pretence, 
and  they  chose  to  have  all  their  lands  sold.  To  this  the  United 
States  assented  by  positive  stipulation.  We  do  not  think  that  it 
was  the  intent  of  the  amendment  to  annul  that  stipulation,  or 
to  construe  statutes  upon  which  the  title  of  the  appellant  depends. 
Its  otHce  was  to  protect  rights  that  might  be  asserted,  indepen- 
dently of  the  treaty,  but  not  to  declare  that  any  such  rights 
existed. 

The  Thayer  act,  as  it  is  called,  is  invoked  ;  but  it  can  have  no 
effect  upon  this  case.  It  was  passed  for  the  sole  purpose  of 
enabling  the  company  to  relocate  its  road  ;  an'd  a  false  recital  in 
it  cannot  turn  the  authority  thereby  given  into  a  grant  of  lands, 
or  a  recognition  of  one.     Especiallj^  is  this  so.  when  it  expressly 


Leavenworth,  etc.,  K.  R.  Co.  r.  U.  S  407 

leaves  the  rights  of  the  appellant  to  he  determined  by  previous 
legislation.  Besides  this,  these  lands  were  then  selling  under  a 
joint  resolution,  and  it  cannot  be  presumed  that  the  Congress  of 
1871  intended  to  change  the  disposition  of  them,  directed  by  the 
Congress  of  186'J. 

It  is  urged  that  parties  have  loaned  money  on  the  faith  that  the 
lands  in  question  were  covered  by  the  grant.  / 

This  is  a  subject  of  regret,  as  is  always  the  case  when  a  title, 
on  the  strength  of  which  money  has  been  advanced,  fails.  It  is 
to  be  hoped  that  the  security  taken  upon  the  other  propei'ty  of 
the  company  will  prove  to  be  sufficient  to  satisfy  the  claims  of  the 
holders  of  its  bonds.  But  whether  this  be  so  or  not,  we  need 
hardly  sa}^  that  the  title  to  lands  is  not  strengthened  by  giving  a 
mortgage  upon  them  ;  nor  can  tlie  fact  tliat  it  has  been  given, 
throw  any  light  upon  the  prior  estate  of  the  mortgagor. 

Upon  the  fullest  consideration  we  have  been  able  to  bestow 
upon  this  case,  we  are  clearly  of  opinion  that  there  is  no  error  in 
the  record.  Decree  affirmed. 

Mr.  Justk  e  Field,  with  whom  concurred  jNIk.  Justice  Swayne 
and  Mr.  Justice  Strong,  dissenting. 

I  do  not  agree  with  the  majority  of  tlie  court  in  this  case.  In 
my  judgment,  the  land  in  controversy  passed,  b^^  the  grant  of  Con- 
gress, to  the  State  of  Kansas,  and  by  the  patents  of  the  State,  to 
the  defendant.  In  reliance  upon  the  title  conferred,  a  large  por- 
tion of  the  money  was  raised  with  which  the  road  of  the  com- 
pany was  built.  I  cannot  thirdv  that  the  legislation  of  Congress, 
and  the  subsequent  action  in  conformit}^  to  it  of  the  Department 
of  the  Interior  and  of  the  State  of  Kansas,  deceived  both  com-^ 
pany  and  creditors. 

The  act  of  Congress  appears  to  me  to  be  singularly  plain  and  free 
from  obscurity.  "There  be  and  is  hereby  granted  to  the  State  of 
Kansas,"  are  the  words  used  for  the  purpose  of  aiding  in  the  con- 
struction of  a  railroad  and  telegraph  between  certain  places, 
alternate  odd  sections  of  land  along  each  side  of  the  road  and  its 
branches.  These  words  were  sufficiently  comprehensive  to  pass 
whatever  interest  the  United  States  possessed  in  the  lands.  If 
there  were  any  limitation  upon  their  operation,  .it  lay  either  in  the 
character  of  the  property  granted,  as  lands  in  the  occupation  of 
Indian  tribes,  or  in  the  subsequent  reservations  of  the  act. 

The  road  with  which  the  present  company  is  concerned  was  to 


408  Leavenworth,  etc.,  R.  R.  Co.  v.  U.  S. 

be  constnicted  tlirough  tlie  tract  situated  in  the  southern  part  of 
the  State,  known  as  the  Osage  reservation.  Upon  this  tract  the 
Osage  tribes  of  Indians  resided  under  the  treat}'  of  June  2,  1825, 
by  which  the  tract  was  reserved  to  them  so  long  as  they  might 
choose  to  occupy  it.  (7  Stat.,  240.)  Tlie  fee  of  the  land  was  in  the 
United  States,  with  the  riglit  of  occupation,  under  the  treaty,  in 
the  l;ndians.  Until  this  right  was  relinquished,  the  occupancy 
could  not  be  disturbed  by  any  poM^er.  except  that  of  the  United 
States.  The  only  right  of  Indian  ti-ibes  to  land  anywhere  within 
the  United  States  is  that  of  occupancy.  Such  has  been  the 
uniform  ruling  of  this  court ;  and  upon  its  correctness  the  govern- 
ment has  acted  from  its  commencement.  In  Fletcher  v.  Peck, 
which  was  here  as  long  ago  as  1810,  it  was  suggested  by  counsel 
on  the  argument  that  the  power  of  the  State  of  Georgia  to  grant 
did  not  extend  to  lands  to  which  the  Indian  title  had  not  been 
extinguished ;  but  Mr.  Chief  Justice  Marshall  replied,  that  the 
majority  of  the  court  were  of  opinion  that  the  nature  of  the  Indian 
title,  which  was  certainly  to  be  respected  until  legitimately 
extinguished,  was  not  such  as  to  be  absolutely  repugnant  to  seisiyi 
in  fee  on  the  part  of  the  State.     (6  Cranch,  121,  142,  143.) 

In  Clark  v.  Smith,  13  Pet.,  200,  decided  many  years  afterwards, 
Mr.  Justice  Catron,  speaking  of  the  grants  made  by  North  Carolina 
and  Virginia  of  lands  within  Indian  hunting  grounds,  said  that 
these  States  '-to  a  great  extent  paid  their  otficers  and  soldiers  of 
the  Revolutionary  war  by  such  grants,  and  extinguished  the 
arrears  due  the  army  by  similar  means.  It  was  one  of  the  great 
resources  that  sustained  the  war.  not  only  by  these  States,  but 
others.  The  ultimate  fee  encumbered  with  Indian  right  of  occu- 
pancy was  in  the  crown,  previous  to  the  Revolution,  and  in  the 
States  of  tlie  Union  afterwards,  subject  to  grant." 

And  in  the  recent  case  of  the  United  States  v.  Cook,  where 
replevin  was  brought  for  timber  cut  and  sold  by  Indians  on  lands 
reserved  to  them,  the  court  said  that  the  fee  of  the'  land  was  in 
the  United  States,  subject  only  to  a  right  of  occupany  in  the 
Indians  ;  tliat  this 'right  of  occupancy  was  as  sacred  as  that  of  the 
United  States  to  the  fee  ;  but  it  was  -'only  a  right  of  occupancy," 
and  "that  the  possession,  when  abandoned  by  the  Indians,  attaches 
itself  to  the  fee  without  further  grant."     (19  Wall.,  5'J3.) 

It  would  seem,  therefore,  clear  that  there  was  nothing  in  the 
character  of  the  land  as  an  Indian  reservation  which  could  prevent 
the  operation  of  tlie  grant  of  Congress,  subject  to  the  right  of 


Leavenworth,  etc.,  R.  R.  Co.  v.  U.  S.  409 

occupancy  retained    l)y  the    Indians :    so   tliat.   when  this  riijiit 
should  be  relinquislied.  the  possession  would  inure  to  the  grantee. 

It  is  true  that  the  United  States,  acting  in  good  faith,  could 
only  acquire  the  relinquishment  of  the  Indian  right  of  occupancy 
by  treaty  ;  and  so  tlie  authors  of  the  bill  for  the  grant  understood. 
The  representative  of  Kansas  in  the  Senate  of  the  United  States, 
b}'  whom  the  bill  was  introduced,  preceded  its  presentation  with 
a  notice  of  his  intention  to  introduce  at  the  same  time  a  bill  for 
extinguishing  the  Indian  title  in  Kansas,  and  the  removal  of  the 
Indians  be3^ond  her  borders.  The  two  bills  were  introduced 
within  a  few  days  of  each  other  ;  and  both  became  a  law  on  the  same 
day.  The  one  for  the  extinguishment  of  the  Indian  title  was 
incorporated  into  the  appro]n-iation  bill,  and  authorized  the 
President  to  enter  into  treaty  for  that  purpose  with  tlie  several 
tribes  of  Indians  then  residing  in  the  State,  and  for  their  own 
removal  beyond  its  limits. 

Pursuant  to  this  authority,  a  treaty  was  subsequently  made 
with  the  Osage  Indian  tribes  ;  and.  before  the  line  of  the  road  of 
the  defendant  company  was  definitely  fixed,  their  right  of  occu- 
pancy to  the  lands  in  controversy  was  extinguished. 

T  proceed  to  the  next  inquiry  :  Was  there  anjj'thing  in  the  reser- 
vations of  the  act  which  limited  the  operation  of  the  general 
words  of  grant  ? 

There  were  two  reservations  in  the  act — one  general  and  the 
other  special,  the  latter  being  in  the  proviso.  The  general  reser- 
vation only  excepted  from  the  operation  of  the  grant  lands  which, 
at  the  time  the  line  of  the  road  and  its  branches  was  definitely 
fixed,  were  sold  or  reserved,  or  to  which  the  right  of  pre-emption 
or  homestead  settlement  had  then  attached. 

The  sections  granted  could  only  be  ascertained  when  the  route 
of  the  road  was  established  :  Init,  as  this  might  take  years,  the 
government  did  not  in  the  meantime  withhold  the  lands  from 
settlement  and  sale  upon  any  notion  that  tlie  route  might  possibly 
pass  through  or  near  them.  It  kept  the  lands  generally  open  to 
the  settler  or  pre-emptor,  and  subject  at  all  times  to  appropria- 
tion for  public  uses  ;  and  the  object  of  the  general  reservation 
mentioned  was  to  provide  for  the  possible  acquisition  of  interests 
in  this  way  to  lands  falling  within  the  limits  of  the  grant. 

When  they  did  so  fall,  other  lands  in  their  place  were  to  be 
selected.  It  was  only  when  the  route  was  definitely  fixed  that  tlie 
right  of  sale  or  settlement  or  reservation  ended,  and  the  title  pre- 


410  Leavenworth,  etc.,  R.  R.  Co   v.  U.  S. 

viously  floating  attached  to  the  land  subject  to  the  grant.  This 
was  the  constiniction  adopted  by  the  land  department,  and  was 
the  one  which  most  full_y  fitted  in  with  the  general  policy  of  the 
government  in  other  cases  in  the  disposition  of  the  public  lands. 

In  1856  the  question  arose  before  the  Department  of  the  Interior 
as  to  the  construction  of  a  similar  provision  in  the  act  of  Congress 
of  May  15.  of  that  year,  granting  lands  to  the  State  of  Iowa,  and 
was  submitted  to  the  then  attorney  general,  Gushing ;  and  he 
replied  that  the  act  contemplated  that  the  United  Htates  should 
retain  power  to  convey  within  all  the  possible  limits  of  the  grant, 
either  b}'  ordinary  sale  or  on  pre-emption,  up  to  the  time  when 
the  lines  or  routes  of  the  road  were  definitely  fixed.  (8  Op.  Att'y 
Gen.,  246.) 

Whilst  the  operation  of  the  grant  may,  on  the  one  hand,  be 
thus  limited  by  what  occurs  subsequent  to  the  act,  it  may,  on  the 
other  hand,  be  enlarged  by  subsequent  removal  of  existing  impedi- 
ments ;  such  as  reservations,  contracts  of  sale,  and  initiatory  steps 
for  acquiring  rights  of  pre-emption  and  homestead  settlement. 
The  question  in  either  case  respects  the  condition  of  the  land  at 
the  time  the  line  or  route  of  the  road  is  definitely  fixed. 

If  a  previous  reservation,  whether  existing  before  the  act  or 
made  aftei'wards,  be  then  relinquished,  or  a  previous  contract  of 
sale  or  right  of  pre-emption  or  homestead  settlement  be  then 
abandoned,  the  grant  will,  in  my  judgment,  take  the  land.  Such 
I  understand  to  be  the  ruling  of  the  land  department ;  and  it  is 
difficult  to  perceive  anv  reasons  of  public  policy  which  should 
prevent  the  land  in  such  cases  from  passing  under  the  grant. 

The  special  reservation  contained  in  the  proviso  to  the  act  in 
terms  applies  only  to  lands  reserved  to  the  United  States.  There 
have  been,  from  the  outset  of  the  government,  reservations  of  lands 
for  public"  uses  of  various  kinds,  through  which  aright  of  way  for 
a  pul)lic  highway  or  railroad  might  well  be  granted,  sul>ject  to  the 
approval  of  the  President,  who  would  see  that  the  property  was  not 
injured.  To  protect  lands  thus  situated,  or  lands  reserved  to  the 
gOA^ernment  for  similar  public  purposes,  the  proviso  applied.  The 
lands  now  in  controversy,  occupied  by  the  Osage  Indians,  were 
set  apart  to  them  ;  they  were  not  reserved  to  the  United  States  in 
any  sense  in  which  those  terms  can  be  properly  used. 

The  treaty  of  1825,  under  which  the  lands  were  held,  dis- 
tinguishes between  reservations  to  the  Indians  and  reservations  to 
the  United  States,  and  speaks  of  both  in  the  same  article.    (Art.  2.) 


Leavenworth,  itc,  R.  R.  Co.  v.  U.  S.  411 

The  argumeut  of  tlie  inajorit}'  of  the  court  on  this  head  appears 
to  me  to  defeat  itself.  The  proA-iso,  it  is  contended,  excluded 
from  the  oi)eratlon  of  the  grant  any  of  the  lands  occupied  by  the 
Indians  ;  it  would  have  been  a  great  breach  of  faith,  it  i$  said,  to 
apply  the  grant  to  any  of  those  lands.  But  at  the  same  time,  it 
is  admitted  that  the  act  contemplated  n  right  of  way  through  those 
lands  for  the  road.  It  is  difficult  to  i)erceive  how  taking  the  lesser 
quantity  of  the  bind  for  a  right  of  way,  if  done  without  treaty, 
could  have  been  any  less  a  breach  of  faith  ;  and  if  done  by  treaty, 
•the  taking  might  as  well  have  extended  to  the  whole  lands.  As 
the  Congress  which  made  the  grant  also  authorized  the  President 
to  obtain  an  extinguishment  of  the  right  of  occupancy  from  the 
Indians,  it  would  seem  that  there  ought  not  to  be  an}'^  greater 
reproach  in  providing  for  the  acquisition  of  the  lands,  than  in 
providing  for  the  acquisition  of  the  right  of  way. 

But.  aside  from  this  consideration,  if  the  conclusion  were  at 
all  doul>tful,  which  T  do  not  think  it  is,  there  is  a  rule  applicable 
to  the  construction  of  provisos  in  a  grant,  which  should  determine 
the  question  here  :  and  that  is,  that  they  must  be  strictly  construed. 
In  United  States  v.  Dixon,  Mr.  Justice  Story  stated,  that  it  was 
"  the  general  rule  of  law.  which  has  always  prevailed  and  becoine 
consecrated  almost  as  a  maxim  in  the  interpretation  of  statutes, 
that  where  the  enacting  clause  is  general  in  its  language  and 
objects,  and  a  proviso  is  afterwards  introduced,  that  proviso  is 
construed  strictly,  and  takes  no  case  out  of  the  enacting  clause 
which  does  not  fall  fairly  within  its  terms.  In  short,  a  proviso 
craves  special  exceptions  only  out  of  the  enacting  clause  :  and 
those  who  set  up  any  such  exception  must  establish  it  as  being 
within  the  words  as  well  as  within  the  reason  thereof."  (15  Pet., 
165.)  I  submit  confidently  that  the  proviso  here  thus  construed 
would  not  take  the  lands  in  controversy^  out  of  the  enacting  clause 
of  the  act. 

The  proviso  itself  is  a  formula  used  in  nearly  all  land  grants  : 
and  is  inserted  out  of  abundant  caution,  even  where  there  are  no 
special  reservations  on  which  it  can  operate.  But  in  this  case 
there  was  the  military  reservation  at  Fort  Gibson,  which,  would 
have  passed  under  tlie  grant  but  for  tlie  proviso. 

There  is.  then,  in  my  judgment  notliing  in  the  reservations  con- 
tained in  the  act  which  should  prevent  the  operation  of  the  grant- 
ing words  upon  tlie  lands  within  the  Osage  reservation.  But,  were 
there  anv  doubt  whether  the  act  was  intended  to  cover  these  Indian 


412  Leavenworth,  etc.,  R.  K.  Co.  r.  U.  S. 

lauds,  that  doubt  would  be  i-emoved  bj'  the  recoguition  of  the  graut 
in  the  treaty  with  the  Indiaus  and  the  subsequent  legislation  of 
Congress.  The  treaty  was  adopted  on  the  29th  of  September, 
1865.  (14  Stat..  087.  692.)  It  provided  that,  in  consideration  of  the 
sale  of  the  lauds,  tlie  United  States  should  pay  $300,000,  to  be 
placed  to  the  c-redit  of  the  Indians  in  the  Treasury  of  the  United 
States  :  and  should  pay  interest  thereon  in  money,  clothing,  pro- 
visions, and  such  articles  of  utility  as  the  Secretary  of  the  Inte- 
rior might  from  time  to  time  direct ;  and  it  declared,  as  originally 
drawn,  that  the  lands  should  be  surveyed  and  sold  as  public  lands" 
are  surveyed  and  sold  under  existing  laws.  But  when  the  treaty 
was  under  consideration  by  the  Senate^  it  was  amended  in  this 
particular,  so  as  to  conform  to  the  act  granting  the  lands  to  Kansas. 
That  act  provided  that  the  alternate  sections  reserved  from  the 
grant,  within  ten  miles  of  the  road  or  its  branches,  should  be  sold 
at  double  the  minimum  price  of  the  public  lands.  The  amend- 
ment inserted  in  the  treaty  added,  immediately  after  the  provision 
for  the  survey  and  sale  under  existing  laws,  the  words  "including 
any  act  granting  lands  to  the  State  of  Kansas  in  aid  of  the  con- 
struction of  a  railroad  tlirough  said  lands,"  so  that  the  provision 
required  that  the  sale  of  the  lands  of  the  Osage  Indians  should  be 
made  in  accordance  with  existing  laws,  including  among  them  the 
one  grai^ting  lands  to  Kansas.  Here  is  a  clear  recognition  that 
that  act  was  intended  to  cover  the  Indian  lands.  This  recognition 
was  not  limited  merely  to  the  Senate,  for  the  attention  of  both 
liouses  of  Congress  was  called  to  the  siibject  by  the  appropriation 
which  the  treaty  required  and  Congress  made. 

Again  :  In  January,  1871,  Congress  passed  an  act  authorizing 
the  company,  for  the  purpose  of  improving  its  route  and  accom- 
modating the  country,  to  relocate  any  portion  of  its  road  south  of 
the  town  of  Thayer,  within  the  limits  of  its  grant  as  prescribed 
by  the  act  of  Congress.  The  town  of  Thayer  was  situated  within 
the  boundaries  of  the  Osage  lands.  The  act  also  declared  that  the 
company  should  not  thereby' — that  is,  by  the  relocation — change, 
enlarge,  or  diminish  the  land  grant ;  and  this  declaration  is  held 
by  the  majority  of  the  court  to  destroy  the  effect  of  the  act  as  a 
recognition  of  the  grant  of  the  Indian  lands.  How  it  does  so  I 
am  unable  to  see.  When  it  declares  that  the  company  raaj^  alter 
its  road  south  of  a  particular  point  within  tlie  limits  of  its  grant 
the  act  does  admit  that  the  company  has  a  grant,  and  that  the 
grant  lies  south  of  that  point :  and  this  admission  is  not  affected 


Missouri,  etc.,  R.  K.  Co.  v.  U.  S.  413 

by  the  further  declaration  that  the  company  shall  not  thereby- 
chano;e.  enlarge,  or  diminish  the  grant.  But  I  will  not  pursue  the 
subject  further.  The  conclusion  reached  b^^  the  court  appears  to 
me  to  work  great  injustice.  The  government  of  the  United  States, 
through  one  set  of  its  officers,  after  mature  deliberation  and  argu- 
ment of  counsel,  has  issued  its  certificates  or  lists  that  the  lands 
in  controversj' were  covered  by  the  grant,  and  has  thus  encouraged 
the  expenditure  of  millions  of  money  in  the  construction  of  a 
public  highway  by  which  the  wilderness  has  been  opened  to  civili- 
zation and  settlement ;  and  then,  on  the  other  hand,  after  the 
work  has  been  done  and  the  money  expended,  has,  with  another 
set  of  officers  and  all  the  machinery  of  the  judiciary,  attempted 
to  render  and  has  succeeded  in  rendering  utterly  worthless  the 
titles  it  aided  to  create  and  put  forth  upon  the  world.  Such  pro- 
ceedings are  not  calculated,  in  my  judgment,  to  enhance  our  ideas 
of  the  wisdom  with  which  the  law  is  administered  or  of  the  justice 
of  the  government. 

I  am  of  opinion  that  the  decree  should  be  reversed. 


MissorRi.  Kansas  and  Texas  Railway  Company  v.  United 
States,  appeal  from  the  Circuit  Court  of  the  United  States  for 
the  District  of  Kansas,  is,  in  its  essential  features,  the  same  as 
the  preceding  case,  and  was  argued  by  the  same  counsel. 

Mr.  Justice  Davis  delivered  the  opinion  of  the  court.  The 
decision  in  Leavenvjorth,  Luicrence  and  the  Galveston  Railroad 
Company  v.  United  States,  supra,  controls  this  case.  Each 
company  claims  a  grant  of  land  within  the  Osage  reservation. 
This  case  involves  substantially  the  same  questions  as  the 
other,  with  this  difference,  that  the  act  of  July  25,  1866  (14  Stat., 
289),  under  which  the  appellant  claims,  was  passed  after  the 
amendment  had  been  advised  by  the  Senate,  and  the  treaty  was 
beyond  its  control. 

In  any  aspect  of  this  case,  the  appellant  cannot  recover.  The 
amendment  refers  only  to  existing  laws,  and  does  not  apply  to 
the  act  of  1866.  as  it  was  not  then  in  force.  It  is  true  that  the 
bill,  which  subsequently  became  a  law,  was  pending  at  the  same 
time  as  the  treaty ;  but,  if  the  Senate  intended  the  amendment  to 
apply  not  only  to  existing,  but  to  contemplated  grants,  language 
appropriate   to    such    a   purpose    would    have  been   used.      This 


414  United  States  v.  Railroad  Company. 

remark  applies  to  Congress  also ;  for,  if  it  meant,  notwithstand- 
ing the  provisions  of  the  treaty,  to  grant  these  lands,  words 
would  have  been  employed  to  include  them.  or.  at  least,  take  them 
out  of  the  proviso.  But  the  result  is  the  same,  whether  the  act 
is  to  be  treated  as  taking  effect  before  or  after  the  treaty  became 
operative  by  the  proclamation  of  the  President,  on  the  21st  of 
January,  1867.  If  it  was  in  force  for  all  purposes  on  the  day  it 
passed,  then  the  Indian  title  even  was  not  extinguished,  as  the 
treaty  had  not  been  ratified.  But  if  it  be  considered  as  in  any 
sense  taking  effect  after  the  ratification,  then  the  claim  of  the 
appellant  is  defeated  by  the  terms  of  the  treaty.  These  lands, 
having  been  thereby  set  apart  to  be  surveyed  and  sold  for  the 
benefit  of  the  Indians,  were  -otherwise  appropriated,"  as  much 
slS  they  had  been  before  the  treaty  was  concluded,  and  were  con- 
sequently reserved  within  the  meaning  of  the  excepting  clause  in 
the  act.  Dr^cree  affirmed. 

Mr.  Justice  Swayne,  Mr.  Justice  Field,  and  Mr.  Justice 
Strong  dissented. 

Note— No  one  but  thp  Attorney  General,  or  some  one  authorized  to 
use  his  name,  can  bring  a  suit  to  set  aside  a  patent  issued  by  the  I'nited 
States,  or  a  jiido-ment  rendered  in  its  courts,  on  wliich  such  a  patent  is 
founded 

I'he  United. States  district  attorney  cannot  bring  the  suit  in  his  own 
name.  {Uiuttd  Staler  v.  Samuel  R.  Throckmorton  et  al.)  U.  S.  Supreme 
Court,  October  Term,  187S. 


The  United  States,  appellant,  v.  The  Burlington   and  Mis- 
souri River  Railroad  Company  in  N«:braska. 

No.  146— October  Term,'  187S. 

1.  rhere  are  no  lateral  limits  to  tlie  grant  of  lands  made  to  the  defend- 

ants by  act  -of  July  2d,  ISIU  (13  Stat,  at  Large,  :^56,  sec.  19),  within 
which  selections  of  lieu  lands  are  confined,  in  this  respect  differing 
from  other  grants  to  railroads 

2.  By  the  10th  section  of  the  act.  there  is  granted,  "to  the  amoimt  of 

ten  alternate  sections  per  mile,  on  each  side  of  said  road,  on  the  line 
thereof."     HM— 

I.  That  the  company  is  not  confined  to  the  selection  of  land 
directly  opposite  to  each  section  of  twenty  miles,  but  may  select 
along  the  whole  line  of  the  road  to  make  up  quantity. 


United  States  v.  Railroad  Company.  415 

ir.  'I'hat  land  could  not  bo  selected  on  the  north  side  of  the  road 

in  lieu  of  lands  deficient  on  the  south  side  thereof. 

III.    That  lands  may  be  taken  along  the  general  direction  or  course 

of  the  line  of  tlie  road,  within  lines  perpendicular  to  its  terminus  at 

eacli  end. 
,3.  '1  he  amendatory  act  of  July  2d.  1804,  enlarging  tlie  grant  of  'uly  1st, 

1S(52  (12  Stat,  at  Large.  489),  gave  the  Union  Pacific  Railroad  ("ora- 

p;iny  the  superior  right  to  the  alternate  sections  within  twenty  miles 

of  its  road. 
4.  A  bill  by  the  United  States  to  have  patents  set  aside  as  illegally  issued, 

is  bad  on  demurrer,  if  the  lands  to  be  affected  are  not  described  or 

identified. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
District  of  Nebraska. 

Mk.  Justice:  Field  delivered  the  opinion  of  the  court. 

This  is  a  suit  in  equity,  brouoht  by  the  United  States  to  annul 
certain  patents  issued  b}^  them  to  the  Burlington  and  Missouri 
River  Railroad  Company,  for  lands  situated  in  Nebraska,  amount- 
ing  in  the  as'Tesate  to  one  million  two  hundred  thousand  acres. 
It  is  founded  upon  alleged  errors  made  by  the  land  department 
in  the  construction  of  the  statute  under  which  the  patents  were 
issued,  and  presents  several  interesting  questions  for  determina- 
tion. These  questions,  however,  are  so  fully  considered  by  the 
presiding  justice  of  the  circuit  court,  and  the  views  we  entertain 
are  so  clearly  stated  in  his  opinion,  that  we  can  add  but  little  to 
what  he  has  said. 

By  the  18th  section  of  the  act  of  Congress  of  July  2d,  1864, 
amending  the  act  of  1862,  "to  aid  in  the  construction  of  a  rail, 
road  and  telegraph  line  from  the  Missouri  river  to  the  Pacific 
ocean,  and  to  secure  to  the  government  the  use  of  the  same  for 
postal,  military,  and  other  purposes,"  the  Burlington  and  Missouri 
River  Railroad  Company,  an  existing  corporation  under  the  laws 
of  Iowa,  was  authorized  to  extend  its  road  through  the  then 
Territory  of  Nebraska,  from  the  point  where  it  strikes  the  INIis- 
souri  river,  south  of  the  mouth  of  the  Platte  river,  to  some  point 
not  further  west  than  the  one  hundredth  meridian  of  west  longi- 
tude, so  as  to  connect,  bj^  the  most  practicable  route,  with  the 
main  line  of  the  Union  Pacific  Railroad,  or  with  that  part  of  it 
which  runs  from  Omaha  to  the  said  meridian.  By  the  10th  sec. 
tion  of  the  act,  there  was  granted  to  the  company,  for  the  purpose 
of  aiding  in  the  construction  of  this  road,  ever}'^  alternate  section 


416  United  States  v.  Railroad  Company. 

of  public  laud  (excepting  mineral  land)  designated  by  odd  num- 
bers, to  the  amount  of  ten  alternate  sections  per  mile  on  each 
side  of  the  road,  on  the  line  thereof,  which  were  not  sold, 
reserved,  or  otherwise  disposed  of  by  the  United  States,  or  to  which 
a  pre-emption  or  homestead  claim  had  not  attached  at  the  time 
the  line  of  the  road  was  definitely  fixed. 

In  April,  1869,  this  railroad  company  was  authorized  to  assign 
and  convey  to  a  company  to  be  organized  under  the  laws  of 
Nebraska,  all  the  rights,  powers  and  privileges  granted  to  it  by 
the  act  of  1864.  subject  to  the  same  conditions  and  requirements. 
The  defendant  company  was  thereafter  organized  and  incorporated 
under  the  laws  of  Nebraska,  with  power  to  build  the  railroad 
-mentioned  :  and  to  it  the  Iowa  company  made  the  assignment 
authorized.  The  new  company  thereupon  proceeded  to  construct 
the  road  from  Plattsmouth,  on  the  Missouri  river,  to  Fort  Kear- 
ne}^  where  it  connected  with  the  road  of  the  Union  Pacific,  a  dis- 
tance of  two  hundred  miles.  The  woi'k  was  commenced  on  the 
4th  of  July.  1869.  and  was  completed  on  the  2d  of  September. 
1872. 

By  the  20th  section  of  the  act  of  1864.  whenever  twentj^  con- 
secutive miles  of  the  I'oad  should  be  completed  in  the  manner 
prescribed,  the  President  of  the  United  States  was  to  appoint 
three  commissioners  to  examine  and  report  to  him  in  relation  to 
it ;  and  if  it  should  appear  that  the  twenty  miles  were  completed 
as  required,  then,  upon  the  certificate  of  the  commissioners  to 
that  effect,  patents  were  to  be  issued  to  the  company  for  land  on 
each  side  of  the  road  to  the  amount  designated.  Such  examina- 
tion, report  and  conveyance  were  to  be  made,  from  time  to  time, 
until  the  entire  road  should  be  completed. 

In  compliance  with  this  provision,  as  each  section  of  twenty 
miles  of  the  road  was  completed,  commissioners  were  appointed 
by  the  President  to  examine  and  report  upon  it ;  and.  upon  their 
reports,  patents  were  issued  for  land  within  twenty  miles  from 
the  road.  But  within  that  distance,  on  the  north  and  south  side, 
portions  of  the  land,  amounting  to  one  million  two  hundred 
thousand  acres,  had  been  sold,  reserved,  or  otherwise  disposed 
of  by  the  United  States,  or  homestead  or  pre-emption  claims  had 
attached  to  it  at  the  time  the  line  of  the  road  was  definitely  fixed. 
Thereupon,  the  company  made  application  to  the  land  depart- 
ment for  land  outside  of  the  limit  of  twenty  miles,  in  lieu  of  the 
land  thus  disposed  of;  and  accordingly,  in  1872,  five  patents  for 


United  States  v.  Railroad  Company.  417 

such  land  were  issued.  It  is  to  annul  these  patents  that  the  pres- 
ent bill  was  filed,  their  validity  beinp:  called  in  question  on  the 
ground  that  the  act  of  Congress  limited  its  grant  to  land  within 
twenty  miles  of  the  road. 

The  line  of  the  road  was  definitely  located  in  June.  1SG5.  and 
land  eml)racing  the  odd  sections,  within  the  limit  of  twenty  miles, 
was  withdrawn  from  sale  in  July  following  :  but  land  outside 
of  this  limit,  which  was  subsequenth''  patented  to  the  company, 
was  not  withdrawn  until  May.  1872.  Between  the  definite  loca- 
tion of  the  road  in  1865.  and  the  withdrawal  of  the  land  outside 
of  the  twenty-mile  limit  in  1872.  the  greater  part  of  the  land  oppo- 
site the  eastern  sections  of  the  road  was  disposed  of  b}'  the  gov- 
ernment :  and,  therefore,  most  of  the  land  covered  by  the  patents 
lies  opposite  the  western  sections.  This  constitutes  another 
ground  of  the  alleged  invalidity  of  the  patents,  it  being  contended 
that  the  grant  was  to  aid  in  the  construction  of  each  section  of  the 
twenty  miles,  taken  separately,  and  that  it  nnist  be  of  land  directly 
opposite  to  such  section. 

By  the  act  of  1862,  the  Union  Pacific  Compan}-  was  authorized 
to  construct  a  railroad  from  a  point  on  the  one-hundredth  merid- 
ian of  longitude  west  of  Greenwich  to  the  western  boundarj'  of 
Nevada  Territory,  the  initial  point  of  which  was  to  be  fixed  by 
the  President.  To  aid  in  the  construction  of  this  road  a  grant 
was  made  to  the  company  of  five  alternate  sections  of  land,  desig- 
nated by  odd  numbers  on  each  side  of  tlie  road,  along  its  line, 
within  the  limit  of  ten  miles.  By  the  same  act  the  company  was 
also  authorized  to  construct  a  road  from  a  point  on  the  western 
boundary  of  the  State  of  Iowa,  to  be  fixed  by  the  President,  to  the 
one-hundredth  meridian  of  longitude,  upon  the  same  terms  and 
conditions  prescribed  for  the  construction  of  the  Union  Pacific  line. 
By  the  act  of  1864  the  grant  of  five  sections  was  increased  to  ten 
sections,  and  the  limit  within  which  thej'  were  to  be  taken  was 
increased  from  ten  to  twenty  miles.  This  enlargement  of  the 
grant  was  not  made  by  the  terms  of  a  new  and  additional  grant, 
but  by  enacting  that  the  numbers  five  and  ten  in  the  original  act 
should  be  stricken  out  and  the  numbers  ten  and  twenty  substi- 
tuted in  their  places. 

In  IMarch,  1864,  the  President  fixed  the  initial  i)oint  of  the  new 
road  near  Omaha,  and  thereupon  the  company  commenced  its 
construction.  This  initial  point  was  distant  about  twenty  miles 
only  from  the  defendant  company's  road,  and  the  roads  of  the  two 


418  United  States  v.  Railroad  Company. 

companies  ran  west  on  nearly  parallel  lines,  so  close  that  the 
grants  to  both  could  not  be  satisfied.  The  Union  Pacific  claimed 
the  whole  of  the  odd  sections  between  the  ten-mile  and  the  twenty- 
mile  limit,  and  its  claim  in  this  respect  was  recognized  by  the 
land  department  by  the  issue  of  patents  or  certificates  for  patents 
for  them.  The  defendant  thereupon  selected  land  more  than 
twenty  miles  distant  from  the  line  of  its  road,  in  order  to  make 
up  the  entire  number  of  sections  granted  to  it.  It  is  now  con- 
tended by  the  government,  that  the  act  of  1864  did  not  enlarge 
the  grant  made  in  aid  of  the  Omaha  branch  by  the  original  act ; 
and  that  the  defendant  was  entitled  to  the  odd  sections  outside 
of  the  ten-mile  limit  and  could  not  take  land  elsewhere  in  lieu  of 
them ;  and  that  if  the  act  did  enlarge  the  grant,  the  defendant, 
having  received  its  grant  by  the  same  act,  was  entitled  to  one-half 
of  the  land  within  the  enlarged  limit ;  and  could  not,  therefore, 
take  land  to  that  amount  elsewhere.  Assuming  this  construction 
of  the  act  of  1864  to  be  correct,  these  objections  are  also  urged 
against  the  validity  of  the  patents. 

It  also  appears  by  the  allegations  of  the  bill  that  land  to  the 
extent  of  one  hundred  and  fifty  thousand  acres,  which  should 
have  been  taken,  if  at  all,  on  the  south  side  of  the  road,  was 
selected  on  the  north  side  of  the  road  beyond  the  twenty-mile 
limit,  and  included  in  the  patents  to  the  defendant ;  and  this  fact 
is  made  an  objection  to  the  validity  of  the  patents  as  to  the  land 
thus  taken. 

Upon  the  several  grounds  stated,  the  United  States  ask  a  decree 
for  the  cancellation  of  the  patents  ;  or,  if  that  cannot  be  granted, 
a  decree  that  they  be  declared  void  as  to  a  portion  of  the  land 
embraced  by  them. 

The  position  that  the  grant  to  the  company  was  only  of  land 
situated  within  twenty  miles  of  the  road,  finds  no  support  in  the 
language  of  the  act  of  Congress.  That  simply  declares  that  a 
grant  is  made  of  land  to  the  amount  of  ten  sections  per  mile  on 
each  side  of  the  road.  The  grant  is  one  of  quantity,  and  the 
selection  of  the  land  is  subject  only  to  these  limitations  :  1st, 
that  the  land  must  be  embraced  by  the  odd  sections  ;  2d,  that  it 
must  be  taken  in  equal  quantities  on  each  side  of  the  road ;  3d, 
that  it  must  be  on  the  line  of  the  road  ;  and  4th,  that  it  must  not 
have  been  sold,  reserved,  or  otherwise  disposed  of  by  the  United 
States,  and  a  pre-emption  or  homestead  claim  must  not  have 
attached  to  it  at  the  time  the  line  of  the  road  was  definitely  loca- 


United  States  v.  Kail  road  Company.  419 

ted.  There  is  here  no  limitation  of  distance  from  the  road  within 
which  the  selection  is  to  be  made,  and  the  court  can  make  none. 
The  objection,  undoubtedly,  has  its  suggestion  from  the  fact  that 
near!}'  all,  perhaps  all  other  grants  of  land  in  aid  of  the  construc- 
tion of  railroads  prescribe  a  lateral  limit  within  which  the  land  is 
to  be  selected ;  and  provide  for  the  selection  of  land  elsewhere 
to  make  up  any  deficiency  arising  from  the  disposition  of  a  por- 
tion of  it  within  such  limit  between  the  date  of  the  act  and  the 
location  of  the  road.  The  reasons  for  the  omission  in  this  case 
are  obvious.  The  road  was  to  run  through  a  country  already 
partially  settled,  and  likely  to  be  more  settled  before  the  line  of 
the  road  would  be  definitely  located.  It  was  doubtful,  therefore, 
whether  any  considerable  portion  of  the  amount  of  land  intended 
for  the  company  would  be  found  undisposed  of  within  twenty 
miles  of  its  road.  Moreover,  the  road  of  the  Union  Pacific  was 
to  be  constructed  v^ithin  a  short  distance,  and  its  grant  would 
necessarily  preclude  a  selection  of  land  by  the  defendant  if  the 
latter' s  grant  were  confined  within  a  similar  lateral  limit.  Con- 
gress gave  no  government  bonds  to  the  company  ;  its  aid  consisted 
merely  in  the  grant  of  land,  and  that  this  might  not  fail,  it  allowed 
the  land  to  be  taken  along  the  line  of  the  road  wherever  it  could 
be  found.  And  the  land  was  taken  along  such  line  in  the  sense 
of  tlie  statute,  when  taken  along  the  general  direction  or  course 
of  the  road  within  lines  perpendicular  to  it  at  each  end.  The 
same  terms  are  used  in  the  grant  to  the  Union  Pacific  Company, 
in  wliich  the  lateral  limit  is  twenty  miles  ;  and  if  a  section  at 
that  distance  from  the  road  can  be  said  to  be  along  its  line,  it  is 
difficult  to  give  any  other  meaning  than  this  to  the  language. 
They  certainly  do  not  require  the  land  to  be  contiguous  to  the 
road  ;  and  if  not  contiguous,  it  is  not  easy  to  say  at  what  distance 
the  land  to  be  selected  would  cease  to  be  along  its  line. 

The  position  that  the  grant  was  in  aid  of  the  construction  of 
each  section  of  twenty  miles  taken  separate^,  and  must  be  limited 
to  land  directly  opposite  to  the  section,  is  equally  untenable.  The 
grant  was  to  aid  in  the  construction  of  the  entire  road,  and  not 
merely  a  portion  of  it,  though  the  company  was  not  to  receive 
patents  for  any  land  except  as  each  twenty  miles  were  completed. 
The  provision  allowing  it  to  obtain  a  patent  then  was  intended 
for  its  aid.  It  was  not  required  to  take  it ;  it  was  optional  to  applj'- 
for  it  then  or  to  wait  until  the  completion  of  other  sections  or  of 
the  entire  road.     The  grant  was  of  a  quantit}'  of  land  on  each  side 


420  United  States  v.  Railroad  Company. 

of  the  road,  the  amount  V)eing  designated  at  so  many  sections  per 
mile,  with  a  privilege  to  receive  a  patent  for  land  opposite  that 
portion  constructed  as  often  as  each  section  of  twenty  miles  was 
completed.  If  this  privilege  were  not  claimed,  the  land  could  be 
selected  along  the  whole  line  of  the  road  without  reference  to  any 
particidar  section.  When  lateral  limits  are  assigned  to  a  grant 
the  land  within  them  must  of  course  be  exhausted  before  laud  for 
any  deficiency  can  be  taken  elsewhere.  And  wjhen  no  lateral 
limits  are  assigned  the  land  department  of  the  government  in 
supervising  the  execution  of  the  act  of  Congress  should,  undoubt- 
edly, as  a  general  rule,  require  the  land  to  be  taken  opposite  to 
each  section  ;  but  in  some  instances  good  reasons  may  exist  wh}^ 
a  selection  elsewhere  ought  to  be  permitted.  If.  as  in  the  present 
case,  by  its  neglect  for  years  to  withdraw  from  sale  land  beyond 
twenty  miles  from  the  road."  the  land  opposite  to  any  section  has 
been  taken  up  by  others  and  patented  to  them,  there  can  be  no 
just  objection  to  allowing  the  grant  to  the  company  to  be  satisfied 
by  land  situated  ^sewhere  along  the  general  line  of  the  road. 

That  the  amendment  of  the  act  of  1864.  enlarging  the  grant  of  1862 
to  the  Union  Pacific  Company,  was  intended  to  apply  to  the  grants 
made  to  all  the  branch  companies,  there  can  be  no  doubt.  All 
the  reasons  which  led  to  the  enlargement  of  the  original  grant  led 
to  its  enlargement  to  the  branches.  It  was  the  intention  of 
Congress,  both  in  the  original  and  in  the  amendatory  act.  to  place 
the  Union  Pacific  Company  and  all  its  branch  companies  upon 
the  same  footing  as  to  land,  privileges,  and  duties  to  the  extent 
of  their  respective  roads,  except  when  it  was  otherwise  specially- 
stated.  Such  has  been  the  uniform  construction  given  to  the  acts 
by  all  departments  of  the  government.  Patents  have  been  issued, 
bonds  given,  mortgages  executed,  and  legislation  had  upon  this 
construction.  This  uniform  action  is  as  potential,  and  as  con- 
clusive of  the  soundness  of  the  construction,  as  if  it  had  been 
declared  by  judicial  decision.  It  cannot  at  this  day  be  called  in 
question. 

Now,  the  enlargement  of  the  grant  by  the  act  of  1864  is  not 
made,  as  already  stated,  by  words  of  a  new  and  additional  grant. 
but  simply  l)y  altering  the  number  of  sections  granted  and  the 
distance  from  the  road  within  which  they  are  to  be  taken.  The 
numbers  in  the  first  act,  says  the  amendment,  shall  be  sti'icken  out 
and  larger  numbers  substituted,  so  that  the  act  of  1862  must 
thenceforth  be  read,  at  least  as  against  the  government  and  parties 


United  States  v.  Railroad  Company.  421 

claiming  under  ooncurrent  or  suV)sequent  grants,  as  though  the 
larger  numbers  had  been  originally  inserted  in  it.  The  Burlington 
and  Missouri  Railroad  Company  received  its  grant  from  the  same 
act  which  declared  that  the  act  of  1862  in  its  grant  to  the  Union 
Pacific  should  be  thus  read  ;  it  must,  therefore,  take  its  rights  to 
the  land  subject  to  the  claim  of  that  company. 

••This  view,*'  as  the  presiding  justice  of  tlie  circuit  court  justly 
observes,  -would  commend  itself  to  Congress  by  its  intrinsic 
equity,  for  by  it  each  road  gets  the  largest  (quantity  of  land  which 
the  statute  permits,  while  the  other  construction  allows  the  Bur- 
lington and  Missouri  Company  to  get  all  it  could  under  any  circum- 
stances, the  other  road  losing  what  the  latter  took  within  the  lap. 
This  comes  out  of  the  fact  that  the  Burlington  and  Missouri 
Company  was  not  confined  within  any  lateral  limits,  while  the 
Union  Pacific  could  not  go  without  its  twenty-mile  limit  to  make 
up  deficiencies."*  •'Besides."  he  adds,  '-both  of  these  roads  have 
acquiesced  in  the  construction  given  and  acted  on  by  the  United 
States,  the  officers  of  the  government  having  prescribed  it  as  the 
one  which  should  govern  all  their  rights,  the  patents  have  been 
issued  under  it  for  the  full  amount  of  all  the  land  which  could  be 
so  claimed  under  both  grants  ;  and  innocent  purchasers  have  no 
doubt  become  owners  of  much  of  the  land  patented  to  the  Union 
Pacific  Company  :  and  it  is  certainly  all  mortgaged,  so  that  an 
incalculable  amount  of  injustice  would  be  done  by  holding  all  this 
void  and  setting  aside  the  patents." 

It  only  remains  to  notice  the  further  olijection  to  the  patents, 
that  land  to  the  amount  of  one  hundred  and  fifty  thousand  acres 
on  the  north  side  of  the  road  is  included  in  them  in  lieu  of  land 
deficient  on  the  south  side.  <It  is  true  the  act  of  Congress  con- 
templates that  one-half  of  the  land  granted  should  be  taken  on 
each  side  of  the  road  :  and  the  department  could  not  enlarge  the 
quantity  on  one  side  to  make  up  a  deficiency  on  the  other.  But 
the  answer  to  the  objection  as  presented  by  the  bill,  either  in  its 
original  form  or  as  amended,  is  that  it  is  not  shown  what  this 
land  was.  and  the  patents  cannot  be  adjudged  invalid  as  to  any 
land  not  identified,  so  as  to  be  capable  of  being  separated ;  nor 
can  any  decision  go  against  the  company  for  its  value  without 
such  identification.  It  is  possible  that  the  land  to  which  the 
company  was  entitled  is  not  so  described  in  the  patents  that  it  can 
be  separated  from  that  which  should  not  have  been  patented.  If 
such  be  the  fact,  the  government  may   be  without  remedy  ;  it 


422  Union  Pacific  R.  R.  Co.  v.  Watts. 

certainly  could  not  insist  upon  a  cancellation  of  the  patents  so  as 
to  affect  innocent  purchasers  under  the  patentees.  It  is  sufficient, 
however,  that  it  makes  no  case  for  relief  by  the  present  bill. 

Decree  affirmed. 


Union  Pacific  Railroad  Company  v.  James  R.  Watts. 

U.  S.  Circuit  Court.— District  of  Nebraska,  1872.— 2  Dillon,  310. 

Union  Pacific  Railroad  Company,— Conntnidion  of  Land  Grant. 

1.  The  land  grant  to  the  Union  Pacific  Kailroad  Company  (12  Stats,  at 

I>aro-e,  492,  sec  3).  excepts,  inter  alia,  lands  to  which  homestead  claims 
had  attached  at  the  time  the  line  of  the  railroad  was  definitely  fixed  : 
Held,  that  this  exception  did  not  operate  in  favor  of  a  sham  and 
fraudulent  homestead  claim. 

2.  What  would  constitute  such  a  claim,  illustrated. 

Before  Dillon  and  Dltndy  J.  J. : 

Ejectment  for  one  hundred  and  sixty  acres  of  land.  No  ques- 
tions arise  on  the  pleadings.  The  plaintiff  introduced  a  patent 
for  the  land  in  dispute,  dated  February  23,  1871,  made  under  the 
act  incorporating  the  plaintiff,  July  1,  1862  (12  Stats,  at  Large, 
489),  and  rested. 

Defendant  was  in  actual  possession,  and  claimed  that  this  land 
was  excepted  out  of  the  grant  to  the  plaintiff,  of  July  1,  1862  (12 
Stats,  at  Large,  492,  sec.  3),  because  before  the  definite  location 
of  the  plaintiff's  line  of  road  there  was  a  homestead  right  thereon 
in  favor  of  one  Peter  Hugus. 

On  the  trial  the  defendant  offered  evidence  of  the  filing  of 
papers  by  Hugus,  December  5,  1863,  to  obtain  a  homestead  right 
under  the  act  of  Congress  in  that  behalf.  Plaintiff,  in  rebuttal, 
produced  the  said  Hugus  as  a  witness,  who  testified,  in  substance, 
as  follows  : 

"I  am  same  person  that,  on  December  5.  1863,  made  a  home- 
stead filing  on  this  quarter-section  ;  never  made  but  one  such 
filing  ;  I  had  never  seen  this  land  before  I  made  that  filing ;  I 
made  it  as  a  great  many  others  made  them  in  those  days  ;  four  of 
us  agreed  to  build  one  house  on  the  four  corners  of  the  section  ; 
two  of  them  abandoned  the  scheme,  and  when  they  did,  I  gave  the 
whole  thing  up,  and  we  never  went  on  to  this  land ;  never  made 


Union  Pacific  K.  R.  Co.  v.  Watts.  423 

any  improvement  upon  it ;  I  lived  in  Omalia  then,  and  ever  since, 
and  never  moved  on  to  this  land,  and  never  saw  it. 

"Afterwards,  Mr.  Davis,  land  agent  of  the  Union  Pacific  Rail- 
road Company,  called  npon  me,  and  refunded  what  I  had  paid, 
about  $10.  and  I  relinquished  my  rvjrht  to  the  company ;  I  never 
had  any  intention  of  improving  this  land  or  of  moving  on  to  or 
entering  it ;  I  did  not  know  where  it  was.  except  that  it  was 
between  the  Elkhorn  and  Platte  rivers  ;  the  land  office  at  the  time 
was  in  Omaha.'' 

On  cross-examination  he  said  : 

"I  was  a  citizen  of  the  United  States,  and  a  resident  of 
Nebraska  ;  I  filed  upon  it  with  intention  to  procure  it  in  the  same 
manner  as  other  people  did  at  that  time  :  Mr.  Davis,  agent  of  the 
Union  Pacific  Railroad  Company,  called  upon  me  to  relinquish  ; 
he  paid  me  the  amount  I  paid  United  States  local  land  officers  to 
make  the  filing,  about  $10." 

The  grant  of  public  lands  by  Congress  to  the  Union  Pacific 
Railroad  Company  (12  Stats,  at  Large.  492,  sec.  3),  is  "of  five 
alternate  sections  per  mile  on  each  side  of  said  railroad,  on  the 
line  thereof,  *  *  *  not  sold,  reserved,  or  otherwise  disposed 
of  by  the  United  States,  and  to  which  a  pre-emption  or  homestead 
claim  may  not  have  attached  at  the  time  the  line  of  said  road  is 
definitely  fixed." 

Mr.  Poppleton  and  Mr.  Wakeley  for  the  plaintiff. 

Mr.  Baldwin  for  the  defendant. 

DiLLOX.  Circuit  Judge  : 

The  land  in  question  is  embraced  in  the  patent  to  the  plaintiff, 
introduced  in  evidence,  dated  February  23,  1871.  and  this  gives 
the  plaintiff  the  legal  title  thereto,  unless  the  same  was  land  which 
had  been  sold,  reserved,  or  otherwise  disposed  of  by  the  United 
States,  or  to  which  a  pre-emption  or  homestead  claim  may  have 
attached  at  the  time  the  line  of  the  plaintiff's  road  was  definitely 
fixed. 

The  defendant  claims  that  the  land  was  excepted  out  of  the 
grant  made  by  the  act  of  July  1.  1862.  because  before  and  at  the 
time  the  line  of  the  plaintiff's  road  was  definitely  fixed,  tliere 
was  a  homestead  claim  thereto  in  favor  of  one  Peter  Hugus. 

If  you  find,  from  the  evidence,  that  Peter  Hugus  never  saw  this 
land,  never  made  any  improvements  thereon,  and  never  intended 
to  make  any,  or  to  comply  with  the  provisions  of  the  homestead 


424         Sioux  City,  etc.,  R.  R.  Co.  v.  U.  P.  R.  R.  Co. 

act  as  to  settlement,  occupation,  and  improvement  of  it,  and  never 
did  anj^tliing,  except  to  file  an  application  for  an  entry,  and  that 
he  afterwards  relinquished  all  right  to  the  plaintitT,  then  we 
instruct  you,  as  a  matter  of  law,  that  no  homestead  claim  attached 
to  the  land  in  favor  of  Hugus,  and  that  the  land  would  be 
embraced  in  the  grant  to  the  plaintiff  made  by  the  said  act  of 
July  1, 1862,  and  conveyed  by  the  patent  to  the  plaintiff,  which  has 
been  introduced  in  evidence. 
Di  NDY,  J.,  concurred. 

Note.— The  jury  found  for  the  planitiff,  and  the  court  rendered  judg- 
ment upon  the  verdict  and  signed  a  bill  of  exceptions. 


Sioux  City  and  Pacific  Railroad  Company  v.  Union  Pacific 
Railroad  Company. 

U.  S.  Circuit  Court,  District  of  Nebraska,  187G.— 4  Dillon,  307. 

Cfnion  Pacific  Railroad   Compntiy.— Construction  of  its  Land  Grant  and  that 
of  (he  Sioux  City  Branch. 

Where  the  land  gi-aut  of  Congress  to  the  Union  Pacific  Railroad  Com- 
pany and  theSioux  City  branch  (12  Stats,  at  Large.  489;  13  ib..  356), 
conflict,  and  the  limits  of  the  respective  grants  overlap  each  other, 
and  lands  in  the  common  territory  were  patented  to  the  two  com- 
panies jointly  as  tenants  in  common  :  Held,  upon  a  construction  of 
th"  legislation  of  Congress  in  this  regard,  that  the  patent  was  rightly 
issued,  and  that  neither  company  was  the  exclusive  owner  of  the 
said  lands,  and  a  partition  was  decreed. 

Before  Dillon,  Circuit  Judge  : 

In  execution  of  the  legislation  of  Congress  whereby  the  com- 
plainant and  defendant  were  granted  public  lands  in  aid  of  the 
construction  of  their  respective  roads,  a  joint  patent  was  granted 
on  the  25th  of  jMarch,  1873,  of  thirty  thousand  seven  hundred 
and  ninety  and  forty-one  hundredths  acres  of  land  lying  between 
the  ten  and  twenty-mile  limit  of  tiie  land  grant  of  the  defendant 
to  complainant  and  defendant.  There  were  also  patented  jointly 
to  the  two  companies  twenty  thousand  nine  hundred  and  four 
acres  within  the  ten-mile  limit  of  the  defendant  company. 

This  bill  is  filed  to  compel  the  Union  Pacific  to  convey  to  the 
Sioux  City  and  Pacific  the  one-half  of  such  lands,  the  latter  com- 


Sioux  City,  etc.,  R.  R.  Co.  v.  U.  P.  R.  R.  Co.         425 

pany  claiming  all  the  laud  embraced  in  said  patents.  The  cross- 
bill asks  a  decree  awarding  the  whole  of  said  lands  to  the  Union 
Pacific,  and  that  the  complainant  be  compelled  to  convey  accord- 
ingly. 

It  is  stipulated  that  the  original  and  cross-suits  shall  be  heard 
as  one  ;  that  the  admissions  of  the  answers  in  each  shall  be  taken 
as  true  in  both,  and  some  further  facts  are  agreed  upon  as  evidence 
in  both  causes. 

The  legislation  out  of  which  this  controversy  springs  are  the 
acts  of  1862  and  1864.  Section  1,  act  of  1862  (12  Stats,  at  Large, 
489),  empowered  the  Union  Pacific  to  build  a  railroad  from  a  point 
on  the  one-hundredth  meridian  of  west  longitude  to  the  western 
boundary  of  Nevada  Territory.  Section  3  granted  land  in  aid  of 
the  construction  of  said  road  "to  the  amount  of  five  alternate 
sections  per  mile  on  each  side  of  said  railroad,  on  the  line  thereof, 
and  within  the  limits  of  ten  miles  on  each  side  of  the  said  road." 
Section  14  authorized  the  construction  of  the  so-called  Sioux  City 
and  Iowa  branches  -  upon  the  same  terms  and  conditions  in  all 
respects  as  are  contained  in  this  act  for  the  construction  of  the 
railroad  and  telegraph  mentioned."  Section  9  contains  the  grant 
of  bonds  and  lands  to  the  Leavenworth,  Pawnee  and  Western 
Railroad  Company  of  Kansas,  now  known  as  the  Kansas  Pacific, 
and  to  the  Central  Pacific  of  California. 

The  grants  are  made  in  the  exact  language  employed  in  the 
grants  to  the  Iowa  and  Sioux  City  branches,  viz. :  they  are 
authorized  to  build  "  upon  the  same  terms  and  conditions  in  all 
respects  as  are  contained  in  this  act  for  the  construction  of  said 
railroad  and  telegraph  line  first  mentioned." 

Section  13  places  the  Hannibal  and  St.  Joseph  Railroad  Com- 
pany of  Missouri  in  the  same  position.  Section  4,  act  of  1864 
(13  Stats,  at  Large,  356),  amends  section  3  of  the  act  of  1862  by 
doubling  the  land  grant  contained  in  the  latter  act.  Section  17 
relieves  the  Union  Pacific  from  the  obligation  to  build  the  Sioux 
City  branch,  and  authorizes  its  construction  by  a  company  to  be 
designated  by  the  President  of  the  United  Stat^,  "on  the  same 
terms  and  conditions  as  are  provided  in  this  act  and  the  act  to 
which  this  act  is  an  amendment,  for  the  construction  of  the  Union 
Pacific  railroad  and  telegraph  line  and  branches,"  except  that  it 
shall  receive  no  more  bonds  than  the  Union  Pacific  would  have 
received  if  it  had  built  the  Sioux  City  branch  under  the  former  leg- 
islation, but  that  it  should  receive  alternate  sections  of  land  for  ten 


426         Sioux  City,  etc.,  R.  R.  Co.  v.  U.  P.  R.  R.  Co. 

miles  in  width  on  each  side  of  the  same  aloiuj  the  ivJiole  length  of 
said  branch. 

The  pleadings  and  stipulation  of  facts  show  that  the  Union 
Pacific  Companj^  filed  their  assent  to  the  act  of  July,  1862,  as 
required  ))y  the  7th  section  of  the  act.  No  other  assent  or  accept- 
ance of  that  act  or  the  act  of  July  2d,  1864,  was  required.  The 
location  for  one  hundred  miles  westward  from  the  Missouri  river 
was  made  by  actually  surveyino;  and  staking  the  line  as  built 
upon  in  the  month  of  November,  1863,  and  a  map  of  the  location 
at  the  time  was  filed  in  the  Interior  Department  October  24th, 
1864.  and  one  hundred  miles  built  in  1865. 

This  map  referred  to  the  acts  of  1862  and  1864,  and  contained 
the  statement  therein,  indorsed  by  the  officers  of  the  Union  Pacific 
Railroad  Company,  that  the  "red  line  on  said  map  is  hereby 
(October  19,  1864),  designated  as  the  permanent  location  of  the 
route  of  the  road  for  one  hundred  miles  west  of  its  eastern 
terminus."  A  partial  change  of  the  line  was  made  by  the  com- 
pany and  approved  by  the  department  in  1865. 

The  Sioux  City  and  Pacific  Railroad  Company  commenced  its 
corporate  existence  August  1st,  1864.  It  was  designated  by  the 
President  to  build  the  Sioux  City  branch  December  24th,  1864, 
and  it  designated  the  general  route  of  the  road  July  24th,  1865, 
and  built  it  in  1869. 

The  lands  in  controversy  lie  within  one  hundred  miles  of  the 
eastern  terminus  of  the  Union  Pacific  railroad. 

E.  S.  Bailey  and  N.  M.  Hubbard  for  the  Sioux  City  Railroad 
Company. 

A.  J.  PopplefoH  for  the  Union  Pacific  Railroad  Company. 

Dillon,  Circuit  Judge  : 

One  of  these  suits  relates  to  lands  icithin  the  te7i-m\\e  limit  of 
the  land  grant  of  the  Union  Pacific  Railroad  Company,  and  the 
other  to  lands  outside  of  the  ten-mile  and  within  the  twenty-mile 
limit.  The  lands  are  patented  to  the  contesting  companies,  jointly, 
as  tenants  in  common.  Each  company  claims  for  itself  the  sole 
and  absolute  ownership  of  all  the  lands.  If  any  portion  of  the 
lands  are  decided  to  belong  to  the  complainant,  it  asks  a  decree 
to  that  eflTect  and  that  partition  be  made. 

1.  It  is  insisted  by  the  Sioux  City  Company  that  the  Union 
Pacific  Railroad  Company  has  no  title  outside  of  the  ien-mile  limit 
of  its  land  grant. 


Sioux  City,  etc.,  R.  R.  Co.  v.  U.  P.  R.  R.  Co.         427 

The  s^round  of  tliis  claim  is  that,  inasmuch  as  said  lands  lie 
east  of  the  one-hundredth  meridian,  and  alontj  the  Iowa  branch, 
the  land  .o;rant  was  not.  as  to  said  branch.  enlaro;ed  by  the  act  of 
18G4,  which  extented  the  lateral  limits  of  the  iirant  from  ten  miles 
to  twenty  miles. 

I  am  of  opinion  that  the  act  of  1864,  as  to  bonds  and  lands, 
applied  as  well  to  the  branches  (including  the  Iowa  branch)  as  to 
the  main  line,  or  stem  of  the  road. 

No  reason  appears  for  excluding  the  branches.  All  were  parts 
of  the  common  scheme  or  system  of  roads  to  connect  the  Pacific 
coast  with  the  States  at  different  points  on  the  Missouri  river. 
Such  has  been  the  uniform  construction  of  the  executive  depart- 
ment of  the  government,  and  lands  have  been  patented  to  the 
Central  Pacific,  the  Kansas  Pacific,  and  other  branches  of  the 
Pacific  system  of  roads,  according  to  this  construction.  This 
construction  is  right,  as  the  acts  of  1862  and  1864. -as  to  the 
extent  of  the  grant,  are  to  be  read  and  taken  together.  This  court 
has  alwaj^s  acted  upon  this  view,  and  such  would  seem  to  be  also 
the  opinion  of  the  Supreme  Court.  {Prescotf  v.  Rdilroad  Com- 
pany, 16  Wall..  607.) 

Besides,  the  17th  section  of  the  act  of  1864,  in  referring  to  the 
"terms  and  conditions"  upon  which  the  Sioux  City  road  is  to  be 
built,  speaks  of  them  as  those  "provided  in  this  act  (1864),  and 
the  act  to  which  this  is  an  amendment,  for  the  construction  of  the 
Union  Pacific  railroad  and  telegraph  line  and  branches."  If  the 
act  of  1864  made  no  change  as  to  branches  in  respect  to  the 
"  terras  and  conditions  "*  of  the  grant,  why  were  branches  mentioned 
in  that  act  in  this  regard  ? 

2.  The  next  ground  of  exclusive  ownership  in  the  Sioux  City 
Company,  against  the  Union  Pacific  Company,  is  based  ui^on  the 
words  of  the  proviso  in  the  17th  section  of  tl;e  act  of  1864  (this 
being  the  section  relating  to  the  Sioux  City  Company),  that  "  said 
company  shall  be  entitled  to  receive  alternate  sections  of  land, 
for  ten  miles  in  width,  along  the  ichole  length  of  said  branch." 

In  this  connection  we  may  refer  also  to  the  claim  of  the  Union 
Pacific  railroad  to  the  exclusive  ownership  of  tlie  same  lands. 
This  claim  is  based  u})on  two  main  grounds.  The  first  is.  that 
the  grant  to  tlie  Sioux  City  Company  is  provisional  and  con- 
tingent, depending  upon  the  designation  b}'  the  President  of  a 
grantee,  etc.,  whereas  its  grant  is  present  and  certain.  Second, 
it  claims  that  as  its  line  was  definitely  located  before  the  line  ol'the 


428         Sioux  City,  etc.,  R.  R.  Co.  r.  U.  P.  R.  R.  Co. 

Sioux  City  Coinpan,y,  and  as  its  road  was  actually  constructed  first, 
it  thereby  became  entitled  to  the  lands  within  the  limits  of  the 
common  territory.  These  conflicting  claims  depend  for  their 
solution  upon  the  construction  of  section  17  of  the  act  of  1864, 
amending  section  14  of  the  act  of  1862.  The  act  of  1862  required 
the  Sioux  City  branch  to  be  built  by  the  Union  Pacific  Company 
whenever  Sioux  City  should  have  a  completed  line  of  railway  to  the 
east.  It  was  to  be  constructed  on  the  "  same  terras  and  condi- 
tions'"  as  the  Union  Pacific  Company  was  to  construct  its  other 
lines.  It  was  to  connect  with  the  Iowa  branch,  or  with  the  main 
line  not  farther  west  than  the  one-hundredth  meridian.  The  point 
of  junction  was  to  ])e  fixed  by  the  President. 

The  act  of  1864  released  the  Union  Pacific  Company  from  the 
obligation  to  construct  the  Sioux  City  branch.  It  empowered 
the  President  to  designate  the  State  corporation  to  construct  the 
branch. 

The  line  of  road  was  to  be  the  same  as  before,  with  the 
important  exception  that  the  company,  instead  of  the  President, 
was  allowed  to  -select"  the  point  of  junction  with  the  Union 
Pacific  road,  and  might  fix  it  lumdreds  of  miles  icest  of  the  one 
hundredth  meridian,  if  it  chose.  This  important  power,  if  not 
limited,  might  be  exercised  so  as  to  involve  the  government  in  a 
subsidy  greatly  in  excess  of  that  needed  to  perfect  and  secure  its 
scheme  of  roads.  To  guard  against  abuse  in  this  respect,  the 
Congress  had  the  wisdom  to  enact,  in  the  form  of  a  proviso  to 
restrain  the  grant,  the  following  :  *'  And  the  said  company  con- 
structing said  branch,  shall  not  be  entitled  to  receive  in  bonds  an 
amount  larger  than  the  said  Union  Pacific  Railroad  Company 
would  be  entitled  to  receive  if  it  had  constructed  the  branch  under 
this  act,  (uid  the  act  to  which  this  is  an  amendment ;  but  said  com- 
pany shall  be  entitled  to  receive  alternate  sections  of  land,  for 
ten  miles  in  width,  on  each  side  of  the  same,  along  the  whole 
length  of  said  branch."  Now,  it  is  plain  that,  while  the  Sioux 
City  branch  was  constructed  under  the  17th  section  of  the  act  of 
1864,  yet  that  section  is  an  amendment  of  the  14th  section  of  the 
act  of  1862,  in  this  respect,  and  is  to  be  construed  accordingly  ; 
and  the  Sioux  City  Company  has  the  same  rights  as  if  this  branch 
had  been  constructed  by  the  Union  Pacific  Company  under  the 
same  legislative  provisions. 

The  inception  of  the  grants  to  both  these  contesting  companies 
is  the  same. 


Sioux  City,  etc,  R.  R.  Co.  v.  U.  P.  R.  R.  Co.        429 

They  are  coiiteraporaneons  in  their  origin.  They  1>oth  sprinir  I'i'oin 
the  same  legislation.  The  right  of  the  one  company,  as  respects  the 
other,  does  not  depend  npon  priority  of  location  or  eonstrnctiou. 

The  special  provisions  of  the  proviso  limit  the  subsidy  to  the 
Sioux  CitA'  Company.  It  might  ])nild  its  road  west  of  the  one 
hundredth  meridian,  Init  it  could  not  get  bonds  for  any  greater 
distance,  but  it  was  entitled  to  receive  land  for  the  distance 
actually  built,  within  lateral  limits  often,  instead  of  twenty  miles, 
on  each  side  of  tlic  road.  So.  by  the  contemporaneous  legislation, 
the  Union  Pacific  Company  was.  within  the  designated  lateral 
limits,  entitled  to  receive  land  for  all  the  line  of  road  it  construc- 
ted. It  is  evident  that,  as  these  roads  must  unite,  these  limits 
will  conflict,  and  lands  granted  will  lie  in  the  common  territory. 
This  controvers}^  relates  to  such  lands. 

As  the  grants  are  the  same  in  their  origin  and  purpose,  and 
both  companies  have  complied  with  the  conditions,  the  case  is 
peculiarly  one  in  which  equality  is  equity.  Such  was  the  view  of 
the  land  department,  and  it  is  the  judgment  of  this  court,  tliat 
neither  company  is  entitled  to  the  exclusive  ownership  as  against 
the  other. 

The  Sioux  City  Company  bases  its  claim  to  exclusive  owner- 
sliip  on  the  words  of  the  proviso — "  along  the  whole  length  of  said 
branch.""  The  purpose  for  which  these  words  were  used  was  not 
to  give  priority  over  the  main  company  where  the  grants  might 
conflict.  The  whole  proviso,  taken  together,  in  connection  with 
the  other  portion  of  the  section,  shows  that  when  Congress  allowed 
the  company  to  fix  its  own  point  of  junction  it  in  effect  said  : 
••Yes,  you  may  do  this,  but  only  on  condition  that,  if  you  go  west 
of  the  one-hundredth  meridian,  you  shall  not  get  any  extra  bonds  ; 
but  you  may  have  lands  as  far  as  you  go,  but  must  take  them 
within  lateral  limits  of  ten  instead  of  twenty  miles." 

A  decree  will  be  entered  that  the  parties  are  tenants  in  com- 
mon as  respects  the  lands  jointly  patented,  and  for  a  i)artition  if 
the  companies  cannot  agree  upon  a  division. 

Decree  accord i ugly. 

XoTK.— I'his  decree  was  acquiesced  hi  by  the  parties,  who  subse- 
quently effected  an  amicable  partition  of  the  lands.  Construction  of 
land  grant  to  the  Fiurlington  and  Missouri  Rixev  Hailroad  Company  in 
Xebr.iska.  13  Stats,  at  Large,  ^r^i.  sec.  10.  See  i'lnted  States  v  Bnr- 
iiii(/f()ii  and  Mtasauri  Ricer  liaihoivi  <. ompaiiij   aide. 

Also  see  The  Missouri,  Kmisu.s  and  Texas  Jti.  li.  Co.  v.  7  lie  Kansas  I'acific. 
R.  R.  CV).,  decided  by  the  U.  S.  Supreme  Court  at  the  October  terra,  187S. 


430  Railroad  Company  v  Fremont  County. 

Railroad  Compa>;y  v.  Fremont  County. 

December  TtTm,  1SG9.— !)  Wall:ice,  89. 

'Jhe  proviso  in  the  act  of  ^lay  1 /Jtli,  ISoG,  to  the  State  of  Iowa  for  aid  in 
the  construction  of  railroads,  which  excludes  from  the  grant  ''all 
lands  heretofore  reserved  by  any  act  of  Congress,  or  in  any  manner 
by  competent  authority,  for  the  purpose  of  aiding  in  any  object  of 
internal  improvement,  or  for  any  pin-pose  whatever."  excludes  the 
lands  granted  to  that  State,  among  others,  by  the  act  of  September 
28th,  18o().  known  as  ''the  swamp-land  gi-ant." 

In  error  to  the  Supreme  Court  of  Iowa. 

Fremont  count3%  Iowa,  filed  a  bill  in  one  of  the  State  courts  of 
Iowa  against  the  Burlington  and  Missouri  River  Railroad  Com- 
pany to  quiet  the  title  to  twelve  thousand  seven  hundred  and  fifty- 
four  acres  of  land,  or  thereabouts,  situate  in  the  said  county,  which 
the  company  claimed  as  belonging  to  it.  Both  parties  set  up  title 
under  grants  by  acts  of  Congress — Fremont  county  under  what 
is  known  as  "the  swamp-land  grant"  to  the  State  of  Iowa,  Sep- 
tember 28th,  1850  (9  Stat,  at  Large,  519);  the  railroad  company 
under  a  grant  to  the  State  for  aid  in  the  construction  of  railroads, 
May  Loth,  1856  (11  Stat,  at  Large,  9). 

The  title  of  Fremont  county,  the  complainant,  was  as  follows  : 

By  the  1st!  section  of  the  act  of  September,  1850,  it  is  pro- 
vided :  "That  to  enable  the  State  of  Arkansas  to  construct  the 
necessary  levees  and  drains  to  reclaim  the  swamp  and  overflowed 
lands  therein,  the  whole  of  those  swamp  and  overflowed  lands 
made  unfit  thereby  for  cultivation,  which  shall  remain  unsold  at 
the  passage  of  this  act.  shall  be.  and  the  same  are  hereby,  granted 
to  said  State." 

Section  2d  provides:  "That  it  shall  be  the  duty  of  the  Seere- 
tar}'  of  the  Interior,  as  soon  as  may  be  practicable  after  the  passage 
of  this  act,  to  make  out  an  accurate  list  and  plats  of  the  lands 
described  as  aforesaid,  and  transmit  the  same  to  the  governor 
of  the  State  ;  and,  at  the  request  of  said  governor,  cause  a  patent 
to  be  issued  to  the  State  therefor,  and  on  that  patent  the  fee-simple 
to  said  land  shall  vest  in  the  said  State,  subject  to  the  disposal 
of  the  legislature  thereof;  provided,  however,  that  the  proceeds 
of  said  lands,  whether  from  sale  or  by  direct  appropriation  in  kind, 
shall  be  applied  exclusively,  as  far  as  necessary,  to  the  purpose 
of  reclaiming  said  lands  by  means  of  the  levees  and  drains  afore- 
said. 


Railroad  Company  v.  Fremont  County.     431 

"  Section  3d  :  That  in  making  out  a  list  and  plats  of  the  land 
aforesaid  all  legal  subdivisions,  the  greater  part  of  whieli  is  "wet 
and  unfit  for  cultivation,'  shall  be  included  in  said  list  and  plats  ; 
but  when  the  greater  part  of  a  subdivision  is  not  of  that  character 
the  whole  of  it  shall  be  excluded  therefrom. 

"Section  4th  :  That  the  provisions  of  this  act  be  extended  to, 
and  their  benefits  be  conferred  upon,  each  of  the  other  States  of  the 
Union  in  which  such  swamp  and  overflowed  lands  known  and 
designated  as  aforesaid  may  be  situated." 

Under  this  last  section  the  State  of  Iowa  became  entitled  to 
the  benefit  of  this  act.  After  its  passage  the  onlj^  important 
steps  to  be  taken  to  perfect  the  title  in  the  State  were  the  ascer- 
tainment and  designation  of  the  several  subdivisions  which  fell 
within  the  description  of  swamp  lands  as  defined  in  the  third 
section.  This  duty  was  cast  upon  the  Secretary  of  the  Interior 
as  the  head  of  the  land  department. 

On  the  21st  of  November,  after  the  passage  of  the  act,  the  Com- 
missioner of  the  Latid  Office  issued  instructions  to  the  surveyor 
general  of  the  State  to  make  a  selection  of  these  subdivisions, 
and  report  the  same  to  the  department,  (see  also  letters  December 
21st,  1853  :  January  22d,  1859,  Lester's  Land  Laws,  pp.  543,  551, 
559),  and  also  to  transmit  copies  to  the  local  land  offices.  This 
duty  was  performed  in  accordance  with  the  instructions.  The 
first  list  was  returned  and  filed  in  the  General  Land  Office  Sep- 
tember 20th,  1854,  and  in  the  local  office  October  23d.  18.54.  The 
second  and  remaining  list  was  returned  and  filed  in  the  General 
Land  Office  January  21st,  1857,  and  in  the  local  office  January 
23d,  1857.  These  two  lists  contain  the  whole  of  the  lands  in  con- 
troversy. On  the  filing  of  the  lists  in  the  local  office  the  register 
was  directed  to  make  a  note  of  the  subdivisions  in  his  tract-book, 
and  to  withdraw  them  from  the  market,  which  was  done  accord- 
ingly. 

In  this  connection  it  may  be  proper  to  refer  to  the  act  of  March 
2d,  1855  (10  Stat,  at  Large,  634),  which  is,  "An  act  for  the  relief 
of  purchasers  and  locators  of  swamp  and  overflowed  lands."  It 
provides,  in  substance,  that  patents  shall  be  issued  to  purchasers 
or  locators  who  had  made  entries  of  the  public  lands  claimed  as 
swamp  lands  prior  to  the  issue  of  patents  to  the  States  under  the 
second  section  of  the  swamp-land  grant  of  1850,  and  providing 
for  an  indemnity  to  the  States.  Conflicts  had  arisen  between 
these  purchasers   and   locators   on  the  one   side  and  the  States 


432     Railroad  Company  v.  Fremont  County. 

claiming  the  land  nnder  the  swamp-land  grants.  As  these  lands 
were  not  withdrawn  from  sale  till  the  filing  of  the  lists  in  the 
local  laud  office,  they  were  supposed  to  be  open  to  entry  or  loca- 
tion, and  a  portion  of  them  had  been  thus  appropriated.  On  the 
other  hand,  the  States  claimed  that  the  grant  to  them  by  the,  act 
of  Congress  was  a  grant  in  presenti,  and  vested  the  title  imme- 
diately. Such  had  been  the  opinion  expressed  by  the  land  com- 
missioner, and  also  by  the  Attorney  General. 

The  embarrassments  of  the  land  department  growing  out  of 
this  controversy  between  the  States  and  the  settlers  were  removed 
by  this  act  of  18-55,  which  confirmed  the  title  of  the  settlers  and 
compensated  the  States  for  the  land  of  which  they  were  deprived. 

The  second  section  of  the  act  provided  that  compensation 
should  be  allowed  to  the  States  only  in  respect  to  subdivisions 
taken  up  by  the  settlers  which  were  swamp  lands  within  the  true 
intent  and  meaning  of  the  act  of  1850 — that  is,  where  the  greater 
part  were  "  wet  and  unfit  for  cultivation."  And  the  land  depart- 
ment, therefore,  allowed  parties  to  contest  the  claim  of  the  States, 
and  to  give  evidence  before  the  proper  officers  that  the  subdivision 
was  not  of  the  character  contemplated  by  the  law.  As  a  conse- 
quence, under  this  construction  of  the  act,  controversies  increased 
between  the  settlers  and  the  States,  and,  as  stated  by  one  of  the 
commissioners  of  the  land  office,  the  contesting  applications 
pending  before  the  department  involved,  by  estimate,  three  millions 
of  acres  :  and,  on  investigations  being  ordered,  papers  came  into 
the  office  by  bushels.  Pending  these  proceedings  Congress  inter- 
vened and  passed  the  act  of  March  3d,  1857.  (11  Stat,  at  Large. 
251.)  This  act  is  entitled  "  An  act  to  confirm  to  the  several  States 
the  swamp  and  overflowed  lands  selected  under  the  act  of  Sep- 
tember 28th,  1850,  and  the  act  of  March  2d,  1849." 

The  act  contains  but  one  section,  and  it  provides  -that  the 
selection  of  swamp  and  overflowed  lands  granted  to  the  several 
States,  by  the  act  of  Congress  approved  September  28th,  1850. 
and  the  act  of  2d  March,  1849,  heretofore  made  and  reported 
to  the  Commissioner  of  the  General  Land  Office,  so  far  as  the 
same  shall  remain  vacant  and  unappropriated,  and  not  interfered 
with  by  an  actual  settlement  under  any  existing  laws  of  the 
United  States,  be,  and  the  same  are  hereby-  confirmed,  and  shall 
be  approved  and  patented  to  the  several  States,  in  conformitj^ 
with  the  provisions  of  the  act  aforesaid,  as  soon  as  may  be  prac- 
ticable," with  a  proviso  saving  the  act  of  March  2d,  1855,  which 


Railroad  Company  v.  Fremont  County.  433 

is  continued  in  force,  :iik1  extended  to  all  entries  and  Icjcations 
claimed  as  swamp  lands,  made  since  its  passage.  As  we  have 
already  stated,  the  selection  of  the  swamp  and  overflowed  lands 
by  the  State  of  Iowa,  under  instructions  from  the  land  depart- 
ment, involved  in  this  suit,  were  made,  and  lists  returned 
and  filed  in  the  department  September  20th,  18r>4.  and  January 
21st,  1857,  which  was  before  the  passage  of  this  act.  And  these 
are  tiie  selections  referred  to,  confirmed  and  approved,  and  for 
Tvhieli  patents  were  directed  to  be  issued  as  soon  as  practicable, 
if  the  same  were  vacant  and  unappropriated,  or  not  occupied  by 
an  actual  settler,  under  some  law  of  Conoress. 

So  far  as  respects  the  title  of  the  complainant.  Fremont  ^•ount3^ 

The  title  of  the  railroad  compan}%  which,  as  already  stated, 
was  under  the  act  of  May  loth,  18o6.  was  thus.  That  act  pro- 
vides "that  there  be  and  is  hereby  granted  to  the  State  of  Iowa, 
for  the  purpose  of  aiding  in  the  construction  of  railroads  from 
Burlington,  on  the  Mississippi  river,  to  a  point  on  the  Missouri 
river,  near  the  mouth  of  the  Platte  river'"  (naming,  also,  several 
other  lines  of  railroads)  "  ever}^  alternate  section  of  land  desig- 
nated b}^  odd  numbers,  for  six  sections  in  width,  on  each  side  of  each 
of  said  roads,"  and  then  provides  that,  when  the  lines  of  the  road 
shall  ])e '-definitely  fixed."  if  it  shall  appear  that  any  of  the  lands 
within  these  six  sections  shall  liave  been  ''  sold,  or  otherwise 
appropriated,"  alternate  sections  may  be  selected,  of  eqna]  (pian- 
tity,  within  fifteen  miles  of  tlie  road. 

To  this  grant  is  the  following  proviso  : 

"That  any  and  all  lands  heretofore  reserved  to  the  United 
States,  by  any  act  of  Congress,  or  in  any  manner,  by  com})etent 
authority,  for  the  purpose  of  aiding  in  any  object  of  internal 
improvement,  or  for  any  other  purpose  whatsoever,  be  and  the 
same  are  hereby  reserved  to  the  United  States  from  the  operation 
of  this  act,  except  so  far  as  it  may  be  found  necessary  to  locate 
the  routes  of  said  railroads  through  such  reserved  lands,  in  which 
case  the  right  of  way  only  shall  be  granted,  subject  to  the 
approval  of  the  President  of  the  United  States." 

The  location  of  the  railroad  was  not  made  on  the  ground,  and 
adopted  by  the  company,  until  March  24th,  1857. 

The  district  court,  rendered  a  decree  declaring  the  riglit  and 
title  to  be  in  the  county,  and  the  claim  of  the  railroad  company 
to  be  void.  The  railroad  comi)any  appealed  to  the  Supreme 
Court  of  the  State,  which,  after  hearing,   aflirmed  the   decree  of 

•28 


434     Railroad  Company  v.  Fremont  County. 

the  district  court.     Tlie  railroad  company  now  brought  the  case 
into  this  court  for  re-examination. 

The  case  was  submitted  on  the  record,  with  briefs  of  Mrssrs. 
Rohrer  and  Strong  for  the  i)laintifr  in  error,  and  of  Mr.  Harvey 
contra. 

Mr.  Justice  Nelson,  having  stated  the  case  in  the  way  already 
given,  delivered  the  opinion  of  the  court. 

It  will  be  seen,  from  an  examination  of  the  grant  made  to  the 
railroad  company,  by  the  act  of  May  15th,  1856,  that  the  reser- 
vations annexed  to  it  are  very  full  and  explicit.  They  are  first 
found  in  the  enacting  clause  itself,  where  provision  is  made  for 
the  selection  of  lands  beyond  the  lines  of  the  six  sections  on 
each  side  or  the  road,  in  case  any  of  the  sections  had  been  pre- 
viously "sold  or  otherwise  disposed  of;"  and  then  again,  in  the 
general  proviso  to  the  grant.  These  reservations  clearly  embrace 
the  previous  grant  of  the  swamp  and  overflowed  lands,  for  the 
purpose  of  enabling  the  States  to  redeem  them,  and  fit  them  for 
cultivation,  by  levees  and  drains.  At  the  time  of  the  passage  of 
this  act  (May  loth,  1856),  a  moiety  of  the  lands  in  controversy 
had  been  selected  and  reported  to  the  land  department ;  and  the 
authorities  of  the  State,  under  instructions  from  that  department, 
were  engaged  in  the  selection  of  the  remainder.  The  lands 
already  selected  and  returned,  had  been  withdrawn  from  sale,  and 
were  not  in  the  market  at  the  time  of  the  passage  of  the  act ; 
and  as  soon  as  the  remaining  lists  were  returned,  which  was  Jan- 
uary 21st,  1857,  they  were  also  withdrawn  from  the  market.  In 
the  language  of  the  railroad  act,  the  whole  of  the  lands  in  con- 
troversy were  '-otherwise  appropriated,"  and  were  "reserved" 
for  the  purpose  of  aiding  the  States  in  their  objects  of  internal 
improvements. 

But  there  is  still,  if  possible,  a  more  decisive  answer  to  the 
title  set  up  by  the  defendants.  Until  the  line  of  the  railroad  was 
definitely  fixed  upon  the  ground,  there  could  be  no  certainty  as  to 
the  particular  sections  of  lands  falling  within  the  grant ;  nor  could 
the  title  to  any  particular  section  on  the  line  of  the  road  vest  in 
the  company.  The  grant  was  in  the  nature  of  a  float,  until  this 
line  was  permanently  fixed.  Now,  the  proofs  show  that  the  loca- 
tion of  the  road  was  not  made  on  the  ground  and  adopted  by  the 
company  till  the  24th  March,  1857,  which  was  after  the  confirma- 
tory act  of  that  year. 


Railroad  Company  v.  Smith.  435 

This,  as  we  have  seen,  confirmed  all  the  selections  made  at  the 
time,  and  which  included  all  in  controversy  in  this  suit,  in  the 
language  of  the  section,  "  so  far  as  the  same  shall  remain  vacant, 
and  unappropriated,  and  not  interfered  with  by  actual  settlement." 
As  the  railroad  cora[)an3^  at  this  time,  for  the  reasons  above  stated, 
had  not  perfected  their  grant  so  as  to  have  become  invested  with 
the  title  to  any  of  the  sections  included  in  the  lists  or  selections 
of  the  swamp  lands  on  file  in  the  land  department,  they  can  set 
up  no  appropriation  of  any  of  these  lands  under  their  grant,  which 
leaves  them  subject  to  the  confirming  act  of  1857,  according  to 
the  ver}'  words  of  it.  Decree  affirmed. 

XoTK.—  About  a  fortnight  after  the  above  reported  ca.«e  wais  adjudged, 
there  was  adjudged  au'  tlier  from  a  difterent  State,  and  which,  as  respec- 
ted the  position  of  parties,  was  a  sort  of  converse  to  it  ;  and  in  its  nature 
somewhat  supplementary.  It  is  accordingly  reported  in  immediate 
sequence.  From  its  correlative  character,  as  just  described,  the  reader 
will  readilj^  understand  that  he  must  be  possessed  of  the  preceding  case 
in  order  to  understand  this  one.     It  was  the  case  of — 

Railroad  Company  v.  Smith. 

9  Wallace,  9.5. 

1-  The  act  of  -Ume  lOth,  lS-'i2,  concerning  swamp  and  overflowed  land.*, 
confirmed  a  present  vested  right  to  such  hinds,  though  tlie  subse- 
quent identitication  of  them  was  a  duty  imposed  upon  the  Secretary 
of  the  Interior. 

2.  These  lands  were  excepted  from  the  subsequent  railroad  grants  to  Iowa 

and  >'issouri. 

3.  In  a  suit  to  recover  lauds  which  the  plaiutitf  claims  under  one  of  the 

railroad  grants,  it  is  competent  to  prove  by  witnesses  who  know  the 
lands  sued  for,  that  they  were  swamp  and  overflowed  witiiin  tlie 
meaning  of  the  swamp-land  grant,  and  therefore  excluded  from  the 
railroad  grant. 

Ekkor  to  the  Supreme  Court  of  the  State  of  Missouri. 

The  Hannibal  and  St.  Joseph  Railroad  Company'  brought  eject- 
ment against  Smitli.  in  one  of  the  county  courts  of  Missouri,  to 
recover  possession  of  certain  lands. 

The  title  of  the  railroad  companj'  was  deduced  from  an  act  of 
Congress,  entitled,  "  an  act  granting  the  right  of  way  to  the  State 
of  Missouri,  and  a  portion  of  the  })ul)lic  lands,  to  aid  in  the  con- 
struction of  certain  railroads  in  said  State.''  approved  June  10th, 
1852.     This  act  granted  to  the  State  of  INIissouri.  for  the  purpose 


436  Railroad  Company  v.  Smith. 

of  inakiiio"  the  railroad,  ever^'  alternate  section  ol"  huul  designated 
by  even  numbers  on  eacii  side  of  the  road. 

The  legislature  of  ^lissouri.  in  Se])teniber.  1852.  accepted  the 
grant,  and  l)y  statute  vested  the  land  granted  in  the  railroad 
company. 

Such  was  the  title  of  the  plaintiff. 

That  of  the  defendant,  Smith,  was  deduced  from  the  same 
"  swami)-land  grant,"  the  act  of  Congress,  namely,  which  is  set  out 
in  the  statement  of  the  last  reported  case,  approved  Sej^tember 
28th.  18nO,  by  which  Fremont  County  in  that  case  held  its  lands. 
But  in  this  case  the  railroad  interest  was  the  actor ;  not  as  in  the 
last  one  a  defending  party  merely  with  a  swamp-land  grantee  in 
the  position  of  assailant. 

On  the  trial  below  of  the  present  cause  the  defendant  introduced 
evidence  against  objection  tending  to  prove  that  the  lands  in  suit 
were  wet  and  unfit  for  cultivation  at  the  date  of  the  swamp-land 
act  of  1850  ;  and  this  was  his  title.  No  evidence  was  introduced 
by  him  tending  to  show  that  the  land  in  suit  was  ever  certified  as 
swamp  land  by  the  Secretary  of  the  Interior,  or  that  the  same  was 
ever  patented  as  such  to  the  State  of  Missouri.  Nor  was  this 
pretended.  In  fact  the  correspondence  of  the  land  department 
of  the  United  States,  showed  that  the  secretary  had  no  sufficient 
evidence  to  enable  him  to  make  such  certificates. 

The  court  in  which  the  suit  was  brought  gave  judgment  for 
Smith,  the  defendant,  and  the  railroad  company  appealed  to  the 
Supreme  Court  of  Missouri.  That  court  affirmed  the  judgment 
of  the  court  below,  and  the  railroad  company  now  brought  the 
case  here. 

3Iessrs.  James  Carr  and   W^.  P.  Hall  for  the  i)laintitf  in  error. 

Mr.  Dral\('  contra. 

Mk.  Justice  Milleu  delivered  the  opinion  of  the  court. 

The  grants  of  lands  by  Congress  to  the  States  in  aid  of  railroads 
have  generally  been  made  with  reference  to  the  lands  through 
which  the  roads  were  to  pass,  and.  as  the  line  of  the  road  had  to 
be  located  after  the  grant  was  made,  it  has  been  usual  in  the  acts 
making  the  grant,  to  describe  them  as  alternate  sections  of  odd 
numbers  within  a  certain  limit  on  each  side  of  the  road.  Avhen  it 
should  be  located. 

This,  of  course,  left  it  to  be  determined  by  the  location  of  the 
road  what  precise  lands  were  granted.     So  far  as  this  uncertainty 


Railroad  ^"!oMPA^^Y  v.  Smith.  487 

ill  the  grant  was  concerned,  it  was  one  tliat  iniglit  remain  for  a 
considerable  time,  but  whicii  was  capable  of  being  made  certain, 
and  was  made  certain  by  the  location  of  the  road.  But  as  Con- 
gress could  not  know^  on  what  lands  these  grants  inigiit  ultimately 
fall.  and.  as  the  roads  passed  through  regions  where  some  of  the 
lands  had  been  sold,  some  had  been  granted  for  other  purposes, 
and  some  had  been  reserved  for  special  uses,  thougli  the  title 
remained  in  the  United  States,  these  statutes  all  contained  large 
exceptions  from  the  grant,  as  measured  by  the  limits  on  each 
side  of  the  road,  and  as  determined  by  the  odd  numl)ers  of  the 
sections  granted. 

We  have  had  before  us  two  cases  growing  out  of  the  construc- 
tion to  1)6  given  to  the  language  of  these  exceptions  in  the  grant 
of  May  15th.  1856.  to  the  State  of  Iowa.  The  first  of  these  was 
the  case  of  Walcott  v.  The  Des  Moines  Compauif  (5  Wallace, 
fiHl).  The  other  is  the  case  of  The  Railroad  Company  v.  Fremont 
County,  decided  at  this  terra.     (The  case  immediately  preceding.) 

The  case  liefore  us  ai'ises  under  a  similar  grant  to  the  State  of 
Missouri,  with  like  reservations  in  the  act.  but  it  raises  a  ques- 
tiou  somewhat  different  from  that  presented  by  the  other  two 
cases. 

In  the  last  of  those  cases  it  was  determined  that  a  proviso 
whicli  excluded  from  the  grant  "  all  lands  heretofore  reserved  by 
any  act  of  Congress,  or  in  any  manner  by  competent  authority, 
for  the  purpose  of  aiding  in  any  object  of  internal  improvement, 
or  for  any  other  purpose  whatever,"  excluded  the  lands  granted  to 
the  States  by  the  act  of  September  •28th,  1850.  known  as  the 
swamp-land  grant.  In  that  case  the  county  of  Fremont,  claiming 
under  the  swamp-laud  grant,  was  plaintiff,  and  the  railroad  com- 
pany, claiming  under  the  grant  to  the  State  for  railroads,  was 
defendant,  and  the  main  point  in  it  related  to  the  evidence  which 
might  be  necessary  to  establish  the  fact  that  the  lands  claimed 
by  plaintiff  were  swamp  and  overflowed  within  the  meaning  of  the 
act  of  1850. 

In  the  present  case  the  position  of  the  parties  is  reversed,  the 
plaintiff  claiming  under  the  act  of  June  10th,  1852,  granting  lands 
to  the  State  of  ^Missouri  for  railroad  purposes,  and  the  defendant 
claiming  under  the  swamp-land  grant. 

In  the  former  case  it  was  necessary  for  the  plaintiff,  who  must 
succeed  on  the  strength  of  her  own  title,  to  show  satisfactory  evi- 
dence that  the  title  of  the  Unitecy  States  had,  under  the  swamp- 


438  Railroad  Coivipany  v.  Smith. 

land  wrant.  become  vested  in  Fremont    county.     The  opinion  of 
the  court  shows  how  this  was  successfuUj^  done  in  that  case. 

In  the  present  action  it  was  incumbent  on  the  railroad  company 
to  show  that  the  title  of  the  United  States  had  become  vested  in 
the  companj'  under  the  grant  for  railroad  purposes. 

It  has  admitted  that  this  has  been  done,  unless  the  land  is  of 
that  class  reserved  from  the  grant  as  swamp  land ;  for  the  act 
under  which  plaintiff  claims  has  an  exception  in  precisely  the 
same  terms  with  the  act  for  the  benefit  of  the  Iowa  railroads. 

In  the  former  case  the  plaintiff,  claiming  under  the  swamp-land 
grant,  was  bound  to  establish  his  title  by  such  evidence  as  Con- 
gress may  have  determined  to  be  necessary  to  make  the  title 
complete  in  the  State,  or  the  grantee  of  the  State,  to  which  the 
lands  were  supposed  to  be  granted,  otherwise  the  plaintiff  estab- 
lished no  legal  title.  In  the  present  case  it  is  not  necessary  to 
defeat  the  title  under  the  railroad  grant  to  show  that  all  the  steps 
prescribed  by  Congress  to  vest  a  complete  title  in  defendant  under 
the  swamp-land  grant,  have  been  taken.  It  is  sufficient  to  show 
that  this  land  which  is  now  claimed  under  the  railroad  grant,  was 
reserved  out  of  that  grant,  and  this  is  done  whenever  it  is  proved 
by  appropriate  testimony'  to  have  been  swamp  and  overflowed 
land,  as  described  in  the  act  of  1850. 

In  order  to  determine  the  character  of  the  testimony  which  will 
prove  this,  it  may  be  useful  to  look  at  the  statute  which  granted 
these  swamp  lands. 

The  first  section  of  the  act,  after  declaring  the  inducements  to 
its  passage,  says  that  the  whole  of  these  swamp  and  overflowed 
lands,  made  thereby  unfit  for  cultivation,  and  unsold,  are  hereby 
granted  to  the  States. 

The  third  section,  for  further  description,  says  that  all  legal 
subdivisions,  the  greater  part  of  which  is  wet  and  unfit  for  culti- 
A'ation,  shall  be  included  as  swamp  lands  ;  but  when  the  greater 
part  is  not  of  that  character  the  whole  of  it  shall  be  excluded. 

Congress  has  here  given  a  criterion,  apparently  not  difficult  of 
application,  b}^  which  to  determine  what  was  granted,  to  wit.  such 
legal  subdivisions  of  the  public  lands,  the  greater  part  of  which 
were  so  far  swamp  and  overflowed  as  to  be  too  wet  for  cultivation. 
Now,  here  is  a  present  grant  by  Congress  of  certain  lands  to 
the  States  within  which  they  lie,  but  it  is  b}-  a  description  which 
requires  something  more  than  a  mere  reference  to  their  townships, 
ranges,  and  sections  to  identif}'  them  as  coming  within   it.     In 


Railroad  Company  v.  Smith.  439 

this  resi)ect  it  is  preciselv  like  the  railroad  grants,  which  only 
became  certain  by  the  location  of  the  road. 

In  fact,  in  this  regard  the  swamp-land  grant  was  the  more 
specific,  for  all  the  lands  of  that  description  were  granted,  and  they 
have  remained  so  granted  ever  since,  while  no  particular  land  was 
described  b}"  the  railroad  grant,  which  was  a  float,  to  be  deter- 
mined by  the  choice  of  the  line  of  the  road  in  future. 

No  act  of  Congress  has  ever  attempted  to  take  back  this  grant 
of  the  swamj)  lands,  or  to  forfeit  it.  or  to  give  it  to  an}-  otlier 
grantee,  or  modified  the  description  by  which  they  were  given  to 
the  States.  It  was  protected  by  positive  reservation  in  the  grant 
under  which  plaintiff"  claims. 

Now,  when  a  party  claiming  under  that  grant  sues  to  recover  a 
particular  piece  of  land  which  is  excepted  out  of  the  grant  bj^ 
appropriate  language,  is  it  not  competent  to  show  by  parol  proof 
that  it  was  of  the  class  covered  bj'^  the  first  grant,  and  excepted 
from  the  second,  namely,  so  swampy,  overflowed,  and  wet  as  that 
the  major  part  of  the  tract  was  unfit  for  cultivation? 

By  the  second  section  of  the  act  of  1850  it  was  made  the  (bity 
of  the  Secretary  of  the  Interior  to  ascertain  this  fact,  and  furnish 
the  State  with  the  evidence  of  it.  Must  the  State  lose  the  land, 
though  clearly  swamp  land,  because  that  oflScer  had  nelected 
to  do  this  ? 

The  right  of  the  State  did  not  depend  on  his  action,  but  on  the 
act  of  Congress,  and  though  the  States  might  be  embarrassed  in  the 
assertion  of  this  right  by  the  delay  or  failure  of  the  secretary  to 
ascertain  and  make  out  lists  of  these  lands,  the  right  of  the  States 
to  them  could  not  be  defeated  by  that  delay.  As  that  officer  had 
no  satisfactory  evidence  under  his  control  to  enable  him  to  make 
out  these  lists,  as  is  abvindantly  shown  by  the  correspondence  of 
the  land  department  with  the  State  officers,  he  must,  if  he  had 
attempted  it,  I'ely,  as  he  did  in  many  cases,  on  witnesses  whose 
personal  knowledge  enabled  them  to  report  as  to  the  character  of 
the  tracts  claimed  to  be  swamp  and  overflowed.  Why  should  not 
the  same  kind  of  testimony,  subjected  to  cross-examination,  be 
competent,  when  the  issue  is  made  in  a  court  of  justice,  to  show 
that  they  are  swamp  and  overflowed,  and  so  excluded  from  the 
grant  under  which  plaiutiflT  claims,  a  grant  which  was  also  a 
gratuity  ? 

The  matter  to  be  shown  is  one  of  observation  and  examination, 
and  whether   arising   before  the    secretarv,   whose    dutv  it   was 


440  ■     Railroad  Company  v.  Smith. 

priiiuirily  to  decide  it,  or  before  the  court,  whose  dut}^  it  became 
because  the  secretary  had  failed  to  do  it.  tliis  wns  clearly  the  best 
evidence  to  be  had,  and  was  sufficient  for  the  purpose. 

Any  other  rule  results  in  this,  that  because  the  Secretary  of  the 
Interior  has  failed,  to  discharge  liis  duty  in  certifying  these  lands 
to  the  States,  they,  therefore,  pass  under  a  grant  from  which  they 
are  excepted  beyond  doubt ;  and  this,  when  it  can  be  proved  by 
testimony  capable  of  producing  the  fullest  conviction,  that  they 
were  of  the  class  excluded  from  plaintiff's  grant. 

The  decision  of  the  case  of  the  Railroad  Company  v.  Fremont 
County,  disposes  of  all  the  errors  alleged  in  this  case  but  the 
admission  of  the  verbal  testimony,  and  as  we  are  of  opinion  that 
the  State  court  did  not  err  in  that,  the  judgment  is 

Affirmed. 

Ml!.  Justice  Cliffokx)  dissenting. 

Unable  to  concur  in  the  judgment  of  the  court  in  this  case,  I 
think  it  proper  to  state  the  reasons  of  my  dissent. 

Congress  made  provision,  by  the  first  section  of  the  act  of  the 
twenty-eighth  of  September,  1850.  that  swamp  and  overflowed 
lands,  ••  made  unfit  thereby  for  cultivation,"'  and  which  remained 
unsold  at  the  passage  of  the  act.  should  be  granted  to  the  States 
in  which  the  same  were  situated,  to  enable  the  vStates  to  construct 
the  necessary  levees  and  drains  to  reclaim  the  lands  so  granted, 
and  render  them  fit  for  cultivation.     (9  Stat,  at  Large,  519.) 

Such  lands  were  a  part  of  the  public  domain,  and  of  course  it 
was  necessary,  before  the  title  could  vest  in  the  States,  that  the 
land  should  be  surveyed  and  designated,  as  lands  not  made  unfit 
thereby  for  cultivation  were  no  more  included  in  the  first  section 
of  the  act  than  lands  sold  prior  to  its  passage. 

Taken  literally,  the  first  section,  it  is  conceded,  purports  to 
grant  the  wiiole  of  these  swamp  and  overflowed  lands,  made  unfit 
thereby  for  cultivation  ;  but  the  second  section  makes  it  the  duty 
of  the  Secretary  of  the  Interior  to  make  out  an  accurate  list  and 
plats  of  the  lands  described  as  aforesaid ;  and  the  third  section 
provides  that,  in  making  out  said  list  and  plats,  whenever  the 
greater  part  of  a  subdivision  is  wet  and  unfit  for  cultivation,  the 
whole  of  it  shall  be  included  in  the  list  and  plats,  which  is  a  mat- 
ter to  be  ascertained  and  determined  by  the  Secretaiy  of  the 
Interior,  and  which,  under  the  act. of  Congress,  cannot  be  ascer- 
tained and  determined  bv  anv  other  tribunal.     Lands  fit  foi-  culti- 


Railroad  Company  v.  Smith.  441 

vation,  under  those  I'ireumstances,  are  to  be  included  in  tlie  list 
and  plats  ;  but  the  corresponding  provision  in  the  same  section  is. 
that  if  the  greater  part  of  a  subdivison  is  iiot  of  that  character, 
that  is,  not  swamp  and  oveflowed  lands,  made  unfit  thereby  for 
cultivation,  then  the  whole  of  the  subdivision  shall  l)e  excluded 
from  the  list  and  plats. 

Special  power  is  conferred  upon  the  Secretary  of  the  Interior 
to  make  out  an  accurate  list  and  plats  of  the  lands,  and  it  is 
quite  clear  that  a  jury  is  nO  more  competent  to  ascertain  and 
determine  whether  a  particular  subdivision  should  be  included  or 
excluded  from  the  list  and  plats  required  to  be  made  under  that 
section,  than  thej'  would  be  to  make  the  list  and  plats  during  the 
trial  of  a  case  involving  the  question  of  title. 

Courts  and  juries  are  not  empowered  to  make  the  required  list 
and  plats,  nor  can  they  determine  what  particular  lands  shall  be 
included  in  the  list  and  plats  before  they  are  prepared  by  the 
officer  designated  by  law  to  perform  that  duty. 

Support  to  that  conclusion  is  derived  from  the  subsecpient 
language  of  the  same  section,  which  makes  it  the  duty  of  the  sec- 
retary, when  the  lists  and  plats  are  prepared,  to  transmit  the 
same  to  the  governor  of  the  State,  and  to  cause  a  patent  to  be 
issued  to  the  State  for  the  lands.  Unless  the  requirements  were 
such  as  is  supposed,  it  is  difficult  to  see  hows  the  affairs  of  the 
land  department  can  be  administered,  as  the  records  and  files  of 
the  office  would  not  furnish  anj^  means  of  determining  whether 
a  given  parcel  of  land  belongs  to  the  State  in  which  it  is  situated. 
or  to  the  United  States. 

Evidently,  the  title  to  the  lands  remains  in  the  United  States 
until  these  proceedings  are  completed,  as  the  same  section  which 
makes  it  the  duty  of  the  secretary,  when  the  list  and  plats  are 
prepared,  to  transmit  them  to  the  governor,  and  to  cause  a  patent 
to  be  issued  therefor,  also  provides- that,  when  the  patent  is  issued, 
"  the  fee  simple  to  said  lands  shall  vest  in  the  said  State,  *  * 
*     *     subject  to  the  disposal  of  the  legislature  thereof." 

Prior  to  the  issuing  of  the  patent  therefor,  the  fee  simple  to 
the  lands  does  not  vest  in  the  State,  and  the  lands,  prior  to  the 
date  of  the  patent,  are  not  subject  to  the  disposal  of  the  legisla- 
ture. 

Strong  confirmation  that  the  construction  of  that  act  herein 
adopted  is  correct,  is  also  derived  fi'om  the  subsequent  legislation 
of  Congress  upon  the  same  subject.     Selections  of  swamp  and 


442  French  v.  Fyan. 

overflowed  lands  Avere  made  1\y  the  States,  in  certain  cases,  under 
that  act,  before  the  required  list  and  plats  were  made  by  the  sec- 
retary', and  Congress,  on  the  third  of  March.  1857,  passed  an 
araendatorj-  act  to  remedy  the  difficulty,  in  which  it  is  provided 
to  the  effect  that  such  selections,  if  reported  to  the  General  Land 
Office,  should  be  confirmed,  provided  the  lands  selected  were 
vacant  and  unappropriated,  and  the  selections  did  not  interfere 
witli  actual  settlements,  under  any  existing  laws  of  the  United 
States.     (11  Stat,  at  Large,  251.) 

Sucli  a  law  was  certainly  unnecessary,  if  the  construction  of 
the  original  act.  adopted  in  the  opinion  just  read,  is  correct,  as,  in 
that  view,  the  original  act  vested  a  fee  simple  title  in  the  States, 
without  the  necessity  of  waiting  for  any  action  on  the  part  of  the 
land  department ;  and,  if  so,  then  it  follows  that  the  States  may 
select  for  themselves,  and  if  their  title  is  questioned  by  the 
United  States,  or  by  individuals,  they  may  claim  of  right  that  the 
matter  shall  be  determined  by  jury. 

Anticipating  that  the  decision  will  occasion  embarrassment  to 
the  land  department.  I  have  deemed  it  proper  to  state,  thus  briefly, 
the  reasons  of  m}'^  dissent. 

Note. — In  case  the  lands  claimed  by  the  railroad  company  as  being 
within  their  grant,  had  been  taxed  by  the  county  as  railroad  land,  for 
seven  years,  and  the  taxes  paid  by  the  company,  the  county  is  estopped 
from  asserting  title  to  the  land  under  the  swamp  land  grant.     (Adams  v. 

B.  and  M.  R.  R.  Co.,  39  Iowa,  507.)  But  to  make  out  the  case  of 
estoppel,  it  is  essential  that  the  taxes  have  been  paid  by  the  railroad 
company,  assessment  alone  is  not  sufficient,  {l^age  County  v.  B.  and 
M.  R.  R.  Co.,  40  Iowa,  520)  ;  also  see  Buena  Vista. Cormty  v.  /.   F.  and  S. 

C.  R.  R.  Co  ,  46  Iowa.  226.) 


French  v.  Fyan  et  al. 
October  Term,  1876.— 3  Otto,  169. 

1.  The  act  of  September  28,  1850  (9  Stat.,  519),  granting  swamp  kinds, 

makes  it  the  duty  of  the  Secretary  of  the  Interior  to  identifj'  them, 
make  lists  thereof,  and  cause  patents  to  be  issued  therefor.  Held, 
that  a  patent  so  issued  cannot  be  impeached  in  an  action  at  law  by 
showing  that  the  land  which  it  conveys  was  not  in  fact  swamp  and 
overflowed  land. 

2.  Railroad   Company  v.  Smith,  9  Wall.,  95,  examined,  and  held  not  to 

conflict  with  this  principle. 


French  v.  Fyan.  443 

EuKOi'i  to  the  Circuit  Court  ol"  the  United  States  lor  the  Eastern 
District  of  Missouri. 

Arijued  by  Mr.  D.  T.  Jeirett  for  the  plaintiff  in  error,  and  by 
Mr.  MoiitijoiHory  Blair  for  the  defendants  in  error. 

Mk.  Jr.sTicE  Miller  delivered  the  opinion  of  the  court. 

This  action  of  ejectment  was  tried  by  the  court  below  without 
a  jury,  by  agreement  of  the  parties,  and  the  only  finding  made  by 
the  court  was  a  general  one  in  favor  of  defendnnt,  on  which  judg- 
ment was  rendered  in  bar  of  the  action. 

The  single  question  in  this  case  is  raised  on  the  refusal  of  the 
court  to  receive  oral  testimony  to  impeach  the  validitj^  of  a  patent 
issued  by  the  United  States  to  the  State  of  INIissouri  for  the  land 
in  question,  under  the  act  of  18,o0.  known  as  the  "swamp-land 
grant."  the  purpose  being  to  show  by  such  testimony  that  it  was 
not  in  point  of  fact  swamp  land  within  the  meaning  of  that  act. 

The  bill  of  exceptions  shows  that  the  land  was  certified  in 
March,  1854,  to  the  Missouri  Pacific  Railroad  Companj',  as  part 
of  tlie  land  granted  to  aid  in  the  construction  of  said  road  by  the 
act  of  June  10.  1852.  and  the  ])laintiff.  b}^  ourchase  made  in  1872. 
became  vested  with  such  title  as  this  certificate  gave. 

To  overcome  this  jirimu  facie  case  defendant  gave  in  evidence 
the  patent  issued  to  ^Missouri  in  1857.  under  the  swamp  land  act. 
and  it  was  admitted  tliat  defendant  had  a  regular  ciiain  of  title 
under  this  patent. 

It  was  at  this  stage  of  the  proceeding  that  the  plaintift"  offered 
to  prove,  in  rebuttal,  by  witnesses  who  had  known  the  character 
of  the  land  in  dispute  since  184!)  till  the  time  of  trial,  that  the 
land  in  dispute  was  not  swamp  and  overflowed  land,  made  unfit 
thereby  for  ciiltivation,  and  that  the  greater  part  thereof  is  not. 
and  never  has  been  since  184i>,  wet  and  unfit  for  cultivation. 

But  the  court  ruled  that,  since  the  defendant  had  introduced  a 
patent  from  the  United  States  to  the  State  for  the  said  hind  under 
the  act  of  September  28.  1850,  as  swamp  land,  this  concluded  the 
question  ;  and  the  court,  therefore,  rejected  said  parol  testimon^v- 
to  which  ruling  of  the  court  the  plaintiff  then  and  there  excepted. 

This  court  has  decided  more  than  once  that  the  swamp  land  act 
was  a  grant  in  presenti,  b}-  which  the  title  to  those  lands  passed 
at  once  to  the  State  in  which  they  lay,  except  as  to  States  admitted 
to  the  Union  after  its  passage.  The  patent,  therefore,  which  is  the 
evidence  that  the   lands  contained   in  it  had  been  identified  as 


444  French  v.  Fyan. 

swampjnnds  under  tlint  act.  relates  back  and  gives  certainty  to 
the  title  of  the  date  of  the  grant.  As  that  act  was  passed  two 
years  prior  to  the  act  granting  lands  to  the  State  of  Missouri  for 
the  benefit  of  the  railroad,  the  defendant  had  the  better  title  on 
the  face  of  the  papers,  notwithstanding  the  certificate  to  the  rail- 
road company  for  the  same  land  was  issued  three  years  before 
the  i)atent  to  the  State,  under  the  act  of  18;)0  :  for  while  the  title 
under  the  swamp  land  act,  being  a  present  grant,  takes  effect  as 
of  the  date  of  that  act,  or  of  the  admission  of  the  State  into  the 
Union,  when  this  occurred  afterwards,  there  can  be  no  claim  of 
an  earlier  date  than  that  of  the  act  of  1«52,  two  years  later,  for 
the  inception  of  the  title  of  the  railroad  company. 

The  only  question  that  remains  to  be  considered  is.  whether, 
in  an  action  at  law  in  which  these  evidences  of  title  come  in  conflict, 
parol  testimony  can  be  received  to  show  that  the  land  in  contro- 
versy was  never  swamp  land,  and  therefore  the  patent  issued  to 
the  State  under  that  act  is  void. 

The  second  section  of  the  swamp  land  act  declares  :  "'That  it 
shall  be  the  duty  of  the  Secretary  of  the  Interior,  as  soon  as 
practicable  after  the  passage  of  this  act,  to  make  out  an  accurate 
list  and  plats  of  the  land  described  as  aforesaid,  and  transmit  the 
same  to  the  governor  of  the  State,  and.  at  the  request  of  the 
governor,  cause  a  patent  to  be  issued  to  the  State  therefor,  and 
on  that  patent  the  fee-simple  to  said  lands  shall  vest  in  said  State, 
subject  to  the  disposal  of  the  legislature  thereof."  It  was  under 
the  power  conferred  by,  this  section  that  the  patent  was  issued 
under  which  defendant  holds  the  land.  We  are  of  opinion  that 
this  section  devolved  upon  the  secretary,  as  the  head  of  the  depart- 
ment which  administered  the  affairs  of  the  public  lands,  the  duty, 
and  conferred  on  him  the  power,  of  determining  what  lands  were 
of  the  description  granted  by  that  act,  and  made  his  office  the 
tribunal  whose  decision  on  that  subject  was  to  be  controlling. 

We  have  so  often  commented  in  this  court  on  the  conclusive 
nature  and  effect  of  such  a  decision  when  made  and  evidenced  by 
the  issuance  of  a  patent,  that  we  can  do  no  better  than  to  rejjeat 
what  was  said  in  the  case  of  Johnsou  v.  Totrsley,  13  Wall..  72. 
where  the  whole  question  was  reviewed  both  on  principle  and 
authority.  In  that  case  it  had  been  strongly  argued  that  the 
specific  language  of  one  of  the  statutes  concerning  pre-emption 
on  the  public  lands  made  the  decision  of  the  Commissioner  of  the 
General  Land  Office  conclusive  evervwhere  and  under  all  circum- 


French  v.  Fyan.  445 

stances.  The  court  respoiuled  to  tliis  aroiiineiit  in  this  hini>iia<ie  : 
"  But  while  we  find  no  support  to  the  pro])osition  of  the  counsel 
for  plaintitrs  in  error  in  the  special  provisions  of  tiie  statute  relied 
on.  it  is  not  to  V)e  denied  that  the  argument  is  much  stronger  when 
founded  on  the  general  doctrine,  that  when  the  law  has  confided 
to  a  special  tribunal  the  authority  to  hear  and*  determine  certain 
matters  arising  in  the  course  of  its  duties,  the  decision  of  that 
tribunal,  within  the  scope  of  its  authority,  is  conclusive  upon  all 
others.  That  the  action  of  the  land  otfice  in  issuing  a  patent  for 
an}'  of  the  public  land,  subject  to  sale  hy  pre-emption  or  otlierwise. 
is  conclusive  of  the  legal  title,  must  be  admitted  under  the  i:)rinci- 
ple  above  stated  ;  and  in  all  courts,  and  in  all  forms  of  judicial 
])roceedings  where  this  title  must  control,  either  b}'^  reason  of  the 
limited  powers  of  the  court  or  the  essential  character  of  the  pro- 
ceedings, no  inquiry  can  be  permitted  into  the  circumstances 
under  which  it  was  obtained.  On  the  other  hand,  there  has  always 
existed  in  the  courts  of  equity  the  power,  in  certain  classes  of 
cases,  to  inquire  into  and  correct  mistakes,  injustice,  and  wrong  in 
both  judicial  and  executive  action,  however  solemn  the  form  which 
the  result  of  that  action  may  assume,  when  it  invades  jDrivate 
rights  :  and  by  virtue  of  this  power  the  final  judgments  of  courts 
of  law  have  been  annulled  or  modified,  and  patents  and  other 
imi)ortant  instruments  issuing  from  the  crown  or  other  executive 
branch  of  the  government  have  been  corrected  or  declared  void, 
or  other  relief  granted." 

We  see  nothing  in  the  case  before  us  to  take  it  out  of  the 
operation  of  that  rule ;  and  we  are  of  opinion  that,  in  this 
action  at  law,  it  would  be  a  departure  from  sound  principle,  and 
contrary  to  well  considered  judgments  in  this  court,  and  in  others 
of  high  authority,  to  iiermit  the  validity  of  the  patent  to  the  State 
to  be  subjected  to  the  test  of  the  verdict  of  a  jury  on  such  oral  testi- 
mony as  might  be  brought  before  it.  It  would  be  substituting  the 
jury,  or  the  court  setting  as  a  jury,  for  the  tribunal  which  Congress 
had  provided  to  determine  the  question,  and  would  be  making  a 
patent  of  the  United  States  a  cheap  and  unstable  reliance  as  a 
title  for  lands  which  it  purported  to  convey. 

The  learned  judge  of  this  court,  who  presides  in  tlie  California 
circuit,  has  called  our  attention  to  a  series  of  decisions  of  the 
supreme  court  of  that  State  in  regard  to  this  swamp-land  irrant, 
commencing  with  27  California  Reports.  87,  in  which  a  different 
doctrine  is  announced.     But  with  nil  the  respect  we  have  for  that 


446  French  v.  Fyan. 

learned  court,  we  are  unaMe  to  eoiu-iir  in  the  views  therein 
expressed.  The  principle  we  have  laid  down  is  in  harmony  with 
the  system  which  <;overns  the  relations  of  the  courts  to  the  officers 
of  the  executive  dejjartments.  especially  those  having  charge  of  the 
public  lands,  as  we  have  repeatedly  decided,  and  we  must  abide 
b}'  them. 

"VVe  do  not  mean  to  affinn  that  there  is  anytliing  in  the  case 
before  us,  as  it  is  here  presented,  wliich  would  justify  a  resort  to 
a  court  of  chancery  :  we  merely  mean  to  express  our  conviction, 
that  the  only  mode  by  which  the  conclusive  effect  of  the  patent 
in  this  case  can  be  avoided,  if  it  can  be  done  at  all,  is  by  a  resort 
to  the  equitable  jurisdiction  of  the  courts. 

The  case  of  Rdilroad  Compauy  v.  Smith,  9  Wall..  95.  is  relied 
on  as  justifying  the  offer  of  i)arol  testimony  in  the  one  before  ns. 
In  that  case  it  was  held  tliat  ])arol  evidence  was  competent  to  pi'ove 
that  a  particular  piece  of  land  was  swamp  land,  within  the  mean- 
ing of  the  act  of  Congress. 

But  a  careful  examination  will  show  that  it  was  done  with 
hesitation,  and  with  some  dissent  in  the  court.  The  admission 
was  placed  expressly  on  the  ground  that  the  Secretary  of  the 
Interior  had  neglected  or  refused  to  do  his  duty  ;  that  he  had 
made  no  selection  or  lists  whatever,  and  would  issue  no  patents, 
although  many  years  had  elapsed  since  the  passage  of  the  act. 
The  court  said  :  -'The  matter  to  be  shown  is  one  of  observation 
and  examination  ;  and  whether  arising  before  the  secretary,  whose 
duty  it  was  primarily  to  decide  it,  or  before  the  court  whose  duty 
it  became,  because  the  secretary  had  failed  to  do  it,  this  was  clearly 
the  best  evidence  to  be  had.  and  was  sufficient  for  the  purpose.'" 
There  was  no  means,  as  this  court  has  decided,  to  compel  him  to 
act ;  and  if  the  party  claiming  under  the  State  in  that  case  could 
not  be  permitted  to  prove  that  the  land  which  the  State  had  conveyed 
to  him  as  swamp  land  was  in  fact  such,  a  total  failure  of  justice 
would  occur,  and  the  entire  grant  to  the  State  might  be  defeated 
by  this  neglect  or  refusal  of  the  secretary  to  perform  his  duty. 
{Gaines  V.  Thompson,  7  Wall.,  347  ;  Secretary  v.  McGarrahan,  9 
Id.,  208  ;   Litchfield  v.  The  Register  and  Receiver,  Id.,  bib.) 

There  is  in  this  no  conflict  with  what  we  decide  in  the  present 
case,  but,  on  the  contrary,  the  strongest  implication,  that  if,  in 
that  case,  this  secretary  iiad  made  any"  decision,  the  evidence  would 
have  been  excluded.  Judijment  ajjirmed. 


Martin  v.  Marks.  447 

XOTE— The  reservation  in  the  act  of  March  2,  1849,  reserving  land 
"claimed  or  held  by  individuals,"  only  applied  to  lands  claimed  or  held 
under  a  title  or  right  recognized  by  law.  Mere  possession  of  land  was 
not  sudicient.     Lawrence  v.  Grout,  12  La.  Ann.,  835. 

The  act  gave  the  State  a  present  vested  right  to  all  lands  of  the  charac- 
ter designated  in  the  act,  and  a  sale  thereafter  by  the  United  States,  of 
such  lands,  could  not  defeat  the  grant.  Clarkson  v.  Ruchaunn,  .53  Mo., 
503;  Campbell  v.  Worimaii,  58  Mo.,  258;  Daniel  v.  Pervi.s,  .50  Miss.,  261  ; 
Supervisors  WJdtesides  Co.  v.  Slate  Attorney,  31  111.,  68;  Gaston  v.  Stall,  5 
(Jrcgon,  48. 

A  certified  copy  of  the  approved  list  of  selections  is  sufficient  evidence 
of  title  in  an  action  of  ejectment.     Darty.  Hercules,  34  HI.,  394. 

In  an  action  of  ejectment,  if  the  holder  of  title  by  patent  from  the 
State,  prove  that  the  land  at  the  date  of  the  swamp-land  act,  was  subject 
to  overflow,  and  recjuired  artificial  means  to  subject  it  to  beneficial  use, 
he  can  recover  against  one  holding  under  a  patent  from  the  United  States, 
issued  previous  to  his,  but  subsequent  to  the  swamp-land  act.  Such 
patent  issued  by  the  United  states  is  void.     Keeler  v.  Brickei/,  78  HI.,  133. 

The  question  whether  a  given  subdivision  of  land  is  within  the  act,  is 
a  question  of  fact,  to  be  determined,  not  upon  official  certificates,  but 
upon  evidence  that  would  be  competent  to  prove  the  fact,  if  it  arose  in 
issue  upon  a  conveyance  between  private  persons.  Keeran  v.  Gnfjith,  27 
Cal.,  87,  and  31  Cal.,  461. 

The  map  approved  by  the  surveyor  general  should  not  be  admitted  to 
prove  the  general  character  of  the  land.  Robinson  v.  Forrest,  29  (  al.,  317. 
The  test  is,  can  the  land  be  ''  successfully  cultivated  in  any  of  the  staple 
crops."  Keeran  v.  Allen,  33  Cal.,  542;  Wriglit  v.  Carpenter,  47  Cal.,  436, 
and  49  Cal.,  607;   Thompson  v.  Thornton,  50  Cal.,  142. 

The  second  section  of  the  act  of  March  12,  1860,  requiring  the  selection 
to  be  made  within  two  years,  was  directory  only,  and  need  not  be  strictly 
complied  with.     Gaston  v.  Sloll,  5  Oregon,  48. 


C.  C.  Maetix  and  Nancy  Martin,  personally  and  as  tutrix  of 
her  minor  children,  plaintiffs  in  error,  /;.  James  Makks. 

No.  220.— October  Term.  1877. 

1.  The  act  of  Marcli  ■'>.  1S57(11  U.  S.  Stat..  2-".l).  perfected  the  title  of  tlie 

States  to  the  selections  of  swamp  lands  which  had  then  been  certified 
to  and  filed  with  the  Commissioner  of  the  General  Uand  oftice.  so 
far  as  they  were  then  vacant,  unappropriated,  and  not  interfered 
with  by  actual  settlement  under  existing  laws. 

2.  The  land  department  could  not  set  aside  these  selections,  because  they 

were  confirmed  by  this  act,  and  the  United  States  could  convey  no 
title  after  this  to  any  of  these  lands,  unices  they  came  within  the 
exceptions  in  the  act  of  1857. 


448 


Martin  v.  Marks. 


In    kkkok  to  tlie  Supreme  Court  of  tlie  State  of  Louisiana. 

Mk.  Ju.stick  Mi].Li:ij  delivered  the  opinion  of  the  court. 

riiis  is  a  writ  of  errpr  to  the  Supreme  Court  of  Louisiana,  in 
wliii-li  court  a  Judgment  in  an  action  in  tlie  nature  of  ejectment 
was  rendered  atfirniinii  tlie  judijment  of  the  court  in  the  parish  of 
Cadd(j  in  favor  of  Marks. 

Marks,  who  was  plaintiff  below,  asserted  title  under  the  swamp 
land  act  of  September  28,  1850.  and  the  earlier  act  of  March 
2.  184;t.  in  rei^ard  to  the  same  class  of  lands  in  the  State  of 
Louisiana.  The  defendants  relied  on  a  patent  from  the  United 
States,  dated  Ma}^  20.  1873.  The  evidence  of  plaintiffs  title 
«nder  the  act  of  1850.  which  is  all  we  shall  now  consider,  is  as 
follows  : 

■•  Xoi!'iii\vi;sTi:i:x   District   La. 

A. — List  of  swamp  land  unfit  for  cultivation,  selected  as  enuring 
to  the  State  of  Louisiana,  under  the  provisions  of  an  act  of 
Congress  approved  28tli  September,  1850.  excepting  such  as  are 
rightfully  claimed  or  owned  by  individuals. 

To.  20  X..  H.  14  W..  west  side  of  Red  river. 


Part>  of  section. 

Section. 

Area. 

Estimated 
area. 

Remarks, 

All  of 

7 

640.00 

SuRVKYOK  General's  Office, 
•     Dondldaonvillc.  Ld..  Maij  \Mu  1852. 
Examined  and  approved. 

(Sig.)  R.  W.  BOYD, 

Surveyor  General,  La." 

To  this  was  attached  a  certificate  of  S.  S.  Burdette.  Commissioner 
of  the  General  Land  Office,  dated  Department  of  the  Interior. 
General  Land  Office.  April  30,  1875.  that  the  foregoing  was  truly 
copied  from  a  list  of  the  swamp  lands  returned  to  that  office  by 
the  surveyor  general  of  Louisiana.  This  was  followed  b}^  sufficient 
evidence  of  title  under  the  State  of  Louisiana.  Neither  this  cer- 
tificate nor  anything  in  the  record  shows  precisely  when  this  list 
was  filed  in  the  General  Land  Office  at  Washington. 


Martin  v.  Marks.  449 

We  liave  within  tlie  last  few  days,  in  the  case  of  The  Ainericuu 
Emigrant  Company  v.  Wright  County,  had  occasion  to  comment 
on  the  failure  of  the  Secretary  of  the  Interior  to  make  out  and 
certify  to  the  States  the  lists  of  swamp  lands  to  which  they  were 
severally  entitled,  and  the  expedients  to  which  the  States  were 
compelled  to  resort  to  obtain  tlie  evidence  of  their  title  to  tliose 
lands.  AVe  have  also  held  in  previous  cases  that  when  this  was 
ascertained  and  the  lands  identified  by  proper  authority,  that 
the  title  related  to  the  date  of  the  grant,  namely,  September  28. 
1850.  and  superseded  any  subsequent  grant  or  evfdence  of  title 
issuing  from  the  United  States.  (Railroad  v.  Smith.  !>  Wall.,  95  ; 
French  v.  Fyan,  93  U.  S.  R..  169.) 

The  above  certificate  of  what  took  place  in  tlie  office  of  the 
surveyor  general  shows  what  was  the  course  adoi)ted  in  the  State 
of  Louisiana  to  secure  identification  and  lists  of  these  lands 
in  that  State,  and  a  similar  course  was  pursued  in  other  States. 
But  these  selections,  tliough  approved  In^  the  surveyor  general,  who 
was  merely  a  local  officer,  still  lacked  the  authentication  of  the 
Secretary  of  the  Interior,  to  whom  alone  Congress  had  confided 
the  duty  of  confirming  or  making  for  himself  these  selections. 

It  will  be  observed  that  the  selection  in  the  present  case  was 
approved  by  the  surveyor  general  in  May.  1852.  It  seems  that 
in  the  year  1857.  seven  years  after  the  passage  of  the  swamp  land 
grant,  this  failure  of  the  secretary  to  act  had  become  a  grievance, 
for  which  Congress  felt  it  necessary  to  provide  a  remedy.  This 
it  did  by  the  act  of  March  3,  1857.     (11  U.  S.  Statutes.  251.) 

That  act  declared  that  the  selection  of  swamj)  and  overflowed 
lands  granted  to  the  States  b}'  the  act  of  1850,  heretofore  made 
and  reported  to  the  Commissioner  of  the  General  Land  Office,  so 
far  as  the  same  sliall  remain  vacant  and  unappi'opriated  and  not 
interfered  with  by  any  actual  settlement  under  any  existing  law 
of  the  United  States.  l)e  and  the  same  are  hereby  confirmed,  and 
shall  be  approved  and  i)atented  to  the  States  in  conformity  to  the 
provisions  of  said  act. 

If  the  paper  signed  by  the  surveyor  general  of  Louisiana,  dated 
]\Iay  18, 1852.  was  on  file  in  the  General  Land  Office  at  Washington 
on  the  day  that  this  act  was  approved,  namely-.  ]March  3,  1857.  we 
have  no  doubt  that  the  act  completed  and  made  perfect  the  title 
of  the  State  of  Louisiana  to  the  land  now  in  controversy.  If  this 
were  so,  the  title  of  plaintiflf'  below  was  superior  to  the  patent 
issued  to  defendant  in  1872.  for  the  land  department  had  no  right 

29 


450  Martin  v.  Marks. 

after  that  act  to  set  aside  the  selection.  The  apiwoval  and  i)atent- 
ing  of  tliose  selections  were  mere  ministerial  acts  in  regard  to 
which  they  had  no  discretion,  unless  it  was  found  that  they  were 
not  vacant,  or  had  been  actually  settled  on  adversely  to  the  swamp- 
land claim.  The  act  of  ISoO  was  a  present  grant,  subject  to 
identification  of  the  specific  parcels  of  land  coming  within  the 
description  of  it,  and  the  selections  confirmed  by  the  act  of  1857 
furnished  this  identification  and  made  the  title  perfect. 

But,  as  we  have  said,  there  is  in  the  record  no  conclusive  evi- 
dence that  this  selection  was  on  file  in  the  General  Land  Office  at 
the  passage  of  the  act.  It  had  been  filed  with  and  approved  by 
the  surveyor  general  in  Louisiana  in  1852.  It  was  found  in  the 
General  Land  Office  at  Washington  when  a  copy  was  applied  for 
in  1875.  If  objectioH  had  been  taken  to  this  defect  of  proof  on 
the  trial  it  would  probably  have  been  required  of  plaintiff  to  show 
when  this  list  was  filed  in  the  latter  office.  But  sitting  here  as  an 
appellate  court,  two  removes  from  that  which  tried  the  case 
originally,  we  hold  :  (1)  That  after  verdict,  or  the  judgment  of  the 
court  sitting  as  jury,  where  no  such  objection  was  made  at  the 
trial,  we  must  hold  that  the  court  or  jury  had  a  right  to  presume 
that  the  surveyor  general  did  his  duty  and  forwarded  this  list 
from  his  office  to  that  of  the  General  Land  Office  some  time 
between  May,  1852,  and  March  3,  1857  :  and  (2)  that  this  question 
of  evidence  is  not  of  that  federal  character  which  authorizes  us  to 
review  the  decision  of  the  Supreme  Court  of  Louisiana  upon  it. 

The  judgment  of  that  court  is  therefore  Affirmed. 

NoTK.— Sales  of  swamp  land  by  the  United  States  after  the  date  of  the 
act  of  September  28,  18.50,  were  illegal  and  void,  and  the  act  of  March 
3,  18-55,  confirming  such  entries,  could  not  give  them  validity  as  against 
a  purchaser  from  the  State.     Bush  v.  Doiiolme^  31  IMich..  48' . 

The  act  of  the  legislature  of  .lanuary  11,  18.52,  must  be  construed  to  be 
a  consent  on  the  part  of  the  State  to  receive  from  the  United  States  the 
purchase-money  paid  to  the  latter  for  all  such  of  the  swamp  lands  as  the 
State  could  rightfully  relinquish. 

The  act  was  not  a  confirmation  of  sales  made  by  the  United  States 
of  lands  to  which  persons  had  obtained  a  right  as  against  the  State, 
under  a  State  law,  before  the  purchase  of  the  same  by  another  from  the 
United  States.  Fletcher  v.  Foot,  7  Barber  (Ark  ).  100;  Bravch  v.  Mitchell, 
24  Ark  ,431. 


Ham  v.  State  of  Missouri.  451 

Adam  Ham,  plaintiff  in  error,  v.  The  State  of  Missoiki. 
December  Term,  ISfM.— IS  Howard.  V^fi  ;  1  Miller,  110. 

School  ludtidf! — Sixteenth  Section. 

1.  It   was  the  intention  of  the  6th  section  of  the  act  of  March,  1820, 

under  which  the  State  of  Missouri  was  organized,  to  grant  to  the 
State,  for  school  purposes,  every  sixteenth  section  of  land  not  other- 
wise disposed  of,  to  which  the  United  States  had  a  good  title. 

2.  The  tenth  section  of  the  act  of  March  3,  ISll.  and  its  proviso,  did  not 

liinder  the  United  States  from  making  this  grant. 
;}.  The  contirmation  by  Congress,  in  the  act  of  182S,  of  the  claim  of  the 
proprietors  of  Mine  la  Motte,  which  had  been  rejected  several  years 
before  the  act  of  ISiO,  did  not,  nor  was  it  intended  to,  defeat  the 
title  to  the  sixteenth  section,  which  passed  by  the  act  of  1820.  It 
only  purported  to  relinquish  such  title  as  the  Unithd  States  had-  at 
its  passage  in  182s. 

This  was  a  writ  of  error  to  the  Supreme  Court  of  the  State  of 
Missouri,  and  the  case  is  fullj'^  stated  in  the  opinion  of  the  court. 

Mr.  Geyer  for  plaintiff  in  error. 
No  counsel  for  the  State. 

Mn.  Justice  Daniel  delivered  the  opinion  of  the  court. 

Upon  a  writ  of  error  to  the  supreme  court  of  the  State,  under 
the  authority  of  the  25th  section  of  the  judiciary  act. 

The  proceedings  now  under  review  were  founded  upon  an  indict- 
ment in  the  circuit  court  of  the  county  of  St.  Francis,  against  the 
plaintiff  in  error,  for  having  committed  waste  and  trespass  on 
the  sixteenth  section  of  lands  situated  in  congressional  township 
number  thirty-fonr,  range  seven  east,  as  being  school  lands 
belonging  to  the  inhabitants  of  the  township  aforesaid. 

Upon  this  indictment  the  plaintiff  was  convicted,  and  con- 
demned to  pay  a  fine  assessed  by  the  jury,  of  four  hundred  dol- 
lars, together  with  the  costs  of  the  prosecution.  From  the 
judgment  of  the  circuit  court,  the  plaintiff  in  error  having  taken 
an  appeal  to  the  Supreme  Court  of  Missouri,  by  the  latter  tribu- 
nal that  judgment  was  in  all  things  affirmed :  the  same  plain- 
tiff now  seeks  its  reversal  here,  in  virtue  of  several  acts  of 
Congress  alleged  to  be  applicable  to  this  case. 

Upon  the  trial  in  the  circuit  court,  the  following  facts  were 
either  established  in  proof  or  admitted  by  the  parties  : 

1.  A  joint  petition  on  the  part  of  Jean  Batiste  Valle,  and  the 


452  Ham  v.  State  of  Missouri.  ^ 

heirs  of  Francois  Valle,  Jean  Batiste  Pratte,  and  St.  (rennne 
Beauvais,  presented  on  the  loth  of  October,  1800,  to  Delassus, 
the  lientenant  liovcrnor  of  ni)per  Louisiana.  i)raYini2;  for  a  grant 
of  two  leagues  square  of  land  on  the  river  St.  Francis,  including 
the  mine  known  by  the  name  of  Mine  a  la  Motte.  and  the  lands 
adjacent. 

2.  An  acknowledgment  by  the  lieutenant  governor,  dated  Jan- 
uary 22.  1801,  of  his  want  of  power  to  grant  a  concession  of  the 
extent  prayed  for.  and  the  fact  of  his  having  transmitted  the  peti- 
tion to  the  intendant  general,  with  the  expression  of  an  opinion 
favorable  to  the  grant,  and  to  the  character  of  the  applicants. 

3.  An  order  by  the  intendant  general,  that  the  documents  pre- 
sented in  behalf  of  the  petitioners  should  be  translated  into  the 
Castilian  language,  and  then  be  laid  before  the  fiscal  agent. 

4.  A  plat  and  survey  for  28,224  arpens,  or  24,142  acres  of  land 
situated  on  the  river  St.  Francis,  certified  by  Nathaniel  Cook,  as 
deputy  survej^or  of  the  district  of  St.  Genevieve,  said  by  him  to 
have  been  made  by  virtue  of  a  concession  b}'  Delassus  to  J.  B. 
and  Francois  Yalle,  Beauvais,  and  Pratte.  on  the  22d  of  January. 
1801. 

5.  The  proceedings  of  the  board  of  commissioners  for  the  exam- 
ination of  land  titles,  on  the  27th  of  December,  1811,  setting  forth 
the  claim  of  Jean  Batiste  and  Francois  Valle,  Jean  Batiste 
Pratte  and  St.  Geunne  Beauvais,  for  two  leagues  of  land,  including 
the  La  Motte  mine,  founded  on  the  recommendation  from  Lieuten- 
ant Governor  Delassus  for  a  concession,  bearing  date  on  the  22d  of 
January,  1801,  and  the  order  of  the  intendant  general  alreadj"- 
mentioned,  and  the  rejection  of  the  claim  by  the  commissioners. 

6.  The  first  section  of  an  act  of  Congress  approved  May  24, 
1828,  confirming  to  Francois  Valle,  Jean  Batiste  Valle,  Jean  Batiste 
Pratte.  and  St.  Geunne  Beauvais,  their  heirs  or  legal  representa- 
tives, a  tract  of  land  not  exceeding  two  leagues  square,  situated 
in  the  county  of  Madison,  in  the  State  of  Missouri,  commonly 
known  by  the  name  of  the  Mine  la  Motte.  according  to  a  field 
plat  and  survey  made  by  Nathaniel  Cook,  deputy  surveyor  of  St. 
Genevieve,  on  the  22d  day  of  P^ebruary.  1806,  with  a  proviso  in 
the  said  first  section  that  the  confirmation  thus  granted  shall 
extend  only  to  a  relinquishment  of  title  on  the  part  of  the  United 
States,  nor  prejudice  the  rights  of  third  persons,  nor  any  title 
heretofore  derived  from  the  United  States,  either  by  purchase  or 
donation. 


Ham  v.  State  of  Missouri.  453 

7.  A  plat  and  survey  made  l)y  Janifer  Sprigg,  deputy  surveyor, 
in  the  mouths  of  March,  1829,  and  August,  1830,  of  the  La  Motte 
Mine  tract  of  land,  stated  to  contain  23.728.02  acres  of  land,  con- 
finned  to  Francois  Valle,  Jean  Batiste  Valle,  Jean  Batiste  Fratte 
by  an  act  of  Congress  approved  on  the  24th  of  December,  1828. 

8.  A  patent  from  the  President  of  the  United  States,  bearing 
date  on  the  25th  of  March,  1839,  granted  under  the  authority  of 
the  act  of  Congress  last  mentioned  (and  in  virtue  of  a  title  de- 
rived from  the  confirmees)  to  Lewis  F.  Linn  and  Evariste  l^ratte 
for  the  La  Motte  Mine  and  the  land  surrounding  the  same,  contain- 
ing 23.728.02  acres  of  land,  in  conformity  with  the  survey  of 
Sprigg.  as  certified  from  the  General  Land  Office  :  lliis  patent, 
containing  literally  tlie  })roviso  in  the  act  of  Congress,  limiting 
the  grant  to  the  patentees  to  a  relinquishment  of  the  title  of  the 
United  States  at  the  date  of  the  act  of  Congress  of  1828. 

9.  An  admission  on  the  part  of  the  State  that  all  the  right, 
title,  and  claim  of  the  original  proprietors  of  the  Mine  La  Motte 
tract  of  laud  had  regularly  passed  to  and  was  vested  in  Thomas 
Fleming,  as  fully  as  those  proprietors  had  or  could  have  tiad  the 
same. 

10.  A  lease  from  Thomas  Fleming  of  the  9tli  of  April,  1849, 
to  Ham.  tlie  plaintiff  in  error,  for  a  portion  of  the  Mine  la  Motte 
land. 

11.  An  admission  further  on  the  part  of  the  State  that  the  six- 
teenth section  claimed  as  school  lands  was  within  the  lines  of  tlie 
original  survey  of  the  tract  made  by  Nathaniel  Cook,  and  of  tlie 
other  surveys  given  in  evidence. 

Upon  the  trial  of  the  indictment  the  circuit  c(mrt.  at  the 
instance  of  the  counsel  for  the  State,  instructed  the  jury  : 

"That  the  act  of  the  6th  of  March,  1820,  entitled  -An  act  to 
authorize  the  peoi)le  of  Missouri  Territory  to  form  a  constitution 
and  State  government,'  «&;C..  taken  in  connection  with  an  ordinance 
declaring  the  assent  thereto  by  the  people  of  Missouri,  by  their 
representatives  assembled  in  convention  on  the  19th  of  July,  1820, 
operated  as  a  grant  by  Congress  to  the  State  of  Missouri  for  the 
use  of  schools  of  the  16th  section  in  controversy,  unless  such 
16th  section  had  been  previously  disposed  of  by  government. 

"That,  although  the  land  claimed  by  the  proprietors  of  Mine 
la  Motte  was  by  the  several  acts  of  Congress  reserved  from  sale, 
and  that  the  survey  of  said  claim  includes  the  lOth  section  in 
controversy,  yet  such  reservation  is  not  such  disposition  of  said 


454  Ham  v.  State  of  Missouri. 

section  by  the  govenuneiit  as  is  within  the  saving  clause  of  the 
6th  section  of  the  act  of  1820,  and  cannot  operate  to  prevent  the 
title  from  vesting  in  the  State  by  virtue  of  said  grant."  • 

The  defendant  in  the  prosecution  prayed  of  the  court  the  fol- 
lowing instructions,  which  were  refused  : 

"That  if  the  jury  believe  tlie  land  in  question  is  included  within 
the  original  grant  by  the  Spanish  government,  and  within  the  lines 
of  the  survey  made  by  N.  Cook  in  1806,  and  within  the  lines  of 
the  lands  confirmed  by  the  act  of  Congress  to  the  original  grantees 
and  those  claiming  under  them,  then  this  land  never  was  public 
land  subject  or  liable  to  be  donated  by  Congress  to  the  State  for 
the  use  of  schools. 

"That  the  several  acts  of  Congress  reserviug  section  16  for  the 
support  of  schools  could  only  refer  to  the  public  lands  proper, 
and  could  not  attach  to  private  claims  whicb  had,  previous  to  such 
donation,  been  claimed  by  individuals  and  reserved  by  Congress 
to  satisfj^  those  claims. 

"That  the  confirmation  of  the  claim  by  the  act  of  Congress  of 
1828  conferred  and  gave  a  superior  title  to  the  lands  in  question 
over  the  title  of  the  State  for  the  use  of  schools." 

Upon  the  accuracy  or  inaccuracy  of  the  instructions  given  by 
the  court  at  the  instance  of  the  State,  and  of  those  denied  by  it 
upon  the  prayer  of  the  defendant  in  the  prosecution,  the  decision 
of  this  cause  must  depend. 

It  would  seem  not  to  admit  of  rational  doubt  that  the  act  of 
Congress  of  March  6,  1820,  authorizing  the  people  of  the  Terri- 
ritory  of  Missouri  to  form  a  constitution  and  State  government, 
taken  in  connection  with  the  ordinance  of  the  State  convention 
of  the  19th  of  July,  1820,  amounted  not  merely  to  a  grant  for  the 
use  of  schools  of  the  16th  section  of  every  township  of  public 
lands  in  the  territory,  but,  further,  to  a  positive  condition  or  man- 
date, so  far  as  Congress  possessed  the  power  to  impose  it.  for  the 
dedication  of  those  sections  to  that  object.  The  assertion  of  the 
court,  then,  of  the  existence  and  character  of  such  grant,  whilst  it 
recognized  any  proper  limitation*  or  qualification  imposed  thereon, 
either  by  previous  acts  of  Congress  or  by  the  investure  of  any 
riafhts  arising  therefrom,  can  be  obnoxious  to  no  just  criticism, 
but  was  in  all  respects  i)roper. 

Whether  or  not  the  lands  claimed  by  the  proprietors  of  the 
Mine  la  Motte,  so  far  as  they  cover  a  portion  of  the  sixteenth 
section  of  township   34.   range   7   east,  are  exempted  from  the 


Ham  v.  State  of  Missouri.  455 

operation  of  the  act  of  March  6.  1820.  and  of  tlie  ordinance  of 
July  19,  1820,  must  depend  upon  the  correct  interpretation  of  the 
previous  legislation  of  Conurress,  and  upon  the  acts  and  position 
of  the  claimants  with  reference  to  that  legislation. 

By  the  10th  section  of  tlie  act  of  Congress  approved  March  3, 
1811.  autliorizing  the  President  of  the  United  States  to  offer  for 
sale  such  portions  of  the  public  lands  l\ang  in  the  State  of 
Louisiana,  as  shall  have  been  surveyed  under  the  direction  of  the 
8th  section  of  tiie  same  statute,  it  is  provided  that  '•  all  such  lands, 
with  the  exception  of  section  number  sixteen,  which  shall  be 
reserved  in  each  township  for  the  use  of  schools'*  (and  with  the 
exception,  further,  of  a  townsiiip  of  land  granted  by  the  7th 
section  of  the  same  statute  for  the  use  of  a  seminary  of  learning, 
and  of  certain  salt  springs  and  lead  mines),  "'shall  be  offered  for 
sale  to  the  highest  bidder,  under  the  direction  of  the  register  of 
the  land  office,  the  receiv^er  of  pul)lic  moneys,  and  principal  deputy 
surveyor." 

In  this  10th  section  is  contained  a  proviso,  ••that  till  after  the 
decision  of  Congress  thereon,  no  tract  of  land  shall  be  offered  for 
sale,  the  claim  to  which  has  been  in  due  time  and  according  to 
law  presented  to  the  recorder  of  land  titles  in  the  district  of 
Louisiana,  and  filed  in  his  office  for  the  purpose  of  being  investi- 
gated by  the  commissioners  appointed  to  ascertain  the  rights  of 
persons  claiming  lands  in  the  territory  of  Louisiana. 

Upon  this  10th  section  of  the  act  of  1811,  and  the  proviso 
thereto  annexed,  is  founded  the  position  taken  by  the  plaintiff  in 
error,  that  the  sixteenth  section  of  township  34  did  not  and  could 
not  vest  in  the  State  of  Missouri,  in  virtue  of  the  act  of  March  6th, 
1820,  and  of  the  ordinance  of  July  !!»  of  the  same  year,  so  far  as 
that  section  fell  within  the  proviso.  In  comparing  the  enacting 
part  of  §  10  of  the  statute  of  1811  with  the  proviso  annexed 
thereto,  it  will  strike  the  attention  that  the  limitation  or  restriction 
contained  in  the  proviso  has  no  connection,  by  its  terms,  with 
lands  granted  or  donated  for  schools,  but  relates  altogether  to 
such  lands  as  it  was  designed  and  declared  should  be  sold  at 
public  auction  to  the  highest  bidder. 

Such,  certainly,  were  not  the  lands  appropriated  to  a  si)ecifie, 
ultimate,  and  permanent  purpose,  namely,  the  support  of  schools. 
As  to  these  lands,  sales,  and  every  other  disposition  inconsistent 
with  such  dedication,  were  expressly  inhibited.  But.  putting 
aside  the  literal  meaning  of  the   10th  section  and  its  proviso,  it 


456  Ham  v.  State  of  Missouri. 

may  well  be  asked  whetlier  the  lanouaoe  and  objects  o1"  the  latter 
can  be  made  to  import  anything  beyond  a  temporary  suspension 
of  the  sales  of  the  lands  intented  for  sale,  for  the  simple  purposes 
of  investigation  ;  and  much  more,  whether  the  10th  section  of  the 
act  of  1811.  and  the  proviso  thereto,  can  be  interpreted  to  mean 
a  denial  to  itself  by  Congress  of  the  right  and  power  to  sell  or 
to  give,  either  iipon  satisfactory  evidence  of  the  invalidity  of  any 
opposing  claim,  or  upon  considerations  of  public  policy,  the  land 
embraced  within  the  suspension. 

Such  an  interpretation,  as  it  is  not  warranted  by  the  language 
of  the  acts  of  Congress,  seems  not  to  accord  either  with  considera- 
tions of  justice  or  policy.  Suppose  that  Congress,  after  the  pas- 
sage of  the  law  of  1811,  should  become  satisfied  of  the  groundless 
nature  of  a  claim  presented  to  the  commissioners,  and  should  be 
convinced  further,  not  only  of  the  benefits  to  result  from  appro- 
priating the  subject  of  that  claim  to  purposes  of  education,  but 
also  of  their  having  pledged  that  subject  to  such  purposes  ;  it 
cannot  be  questioned  that  the  power  to  reject  or  disregard  an 
unfounded  claim,  and  to  comply  with  a  previous  and  just  obliga- 
tion, remained  in  a  plenary  and  unimpaired  extent  in  Congress  ; 
and  that  this  right  and  obligation  could  in  no  degree  be  affected 
by  a  mere  agreement  to  investigate. 

Let  it  be  remembered,  too.  that  the  application  of  those  under 
whom  the  plaintiff  in  error  deduces  his  alleged  title  was  for  a 
simple  gratuity,  founded  on  no  consideration  whatever  but  the 
bounty  of  the  donor.  The  opinion  and  the  action  by  Congress 
with  respect  to  the  rights  of  the  parties  to  that  controversy, 
seemed  to  have  been  entirely  coincident  with  the  views  herein 
suggested. 

Under  the  provision  of  the  act  of  1811,  the  proprietors  of  Mine 
la  Motte  presented  their  claim,  together  with  such  evidence  as  they 
deemed  essential  to  its  support,  to  the  tribunal  created  by  law  for 
the  investigation  of  land  titles.  By  this  tribunal  the  claim  of 
these  proprietors  was  rejected  on  the  27th  of  December,  1811. 
From  the  period  last  mentioned  until  the  24th  of  May,  1828,  an 
interval  of  sev-enteen  years,  this  claim  remains  dormant  or 
quiescent,  when  it  is  confirmed  at  the  date  last  mentioned. 

The  nature   and  effect  of  this  confirmation  will   presently  be 

.  considered  ;  but  in  the  interval  above  mentioned,  the  government 

(the  undoubted  possessor  of  the  title),  after  the   lapse  of  nine 

years  from  the  rejection  by  its  agent  of  this  slumbering  title,  by 


Ham  v.  State  of  Missouri.  457 

express  compact  with  the  State  of  Missouri,  i^rauts  to  that  State, 
for  the  use  of  schools,  the  sixteenth  section  of  every  township  in 
the  State  which  had  not  been  sokl  or  ••otherwise  disposed  of." 

Upon  recurring  to  the  law  of  ^lay  24,  1828.  it  will  be  borne  in 
mind  that  the  confirmation  to  the  proprietors  of  the  Mine  la  Motte 
is  extended  merely  to  a  relinquishment  of  the  title  of  the  United 
States  at  the  date  of  tliatlaw.  and  is  declared  to  have  no  influence 
to  prejudice  the  rights  of  third  persons,  nor  any  title  heretofore 
derived  from  the  United  States,  either  by  purcliase  or  donation. 

It  is  proper  to  keep  in  view  this  proviso  in  this  confirmation, 
in  order  to  ascertain  its  effect,  if  any,  upon  the  proper  meaning  of 
the  qualification  in  the  grant  to  the  State  of  ]Missouri  comprised 
in  the  phrase  "or  otherwise  disposed  of." 

In  our  construction  of  the  act  of  Congress  of  March  3,  1811.  we 
have  interpreted  the  proviso  to  the  10th  section  of  that  act  as 
neither  declaring  nor  importing  a  final  and  permanent  divestiture, 
or  any  divestiture  whatsoever,  of  the  title  of  the  United  States, 
but  as  a  provision  prescribing  a  temporary  arrangement  merelj' 
for  the  purposes  of  investigation,  leaving  the  title  still  in  the  gov- 
ernment, to  be  retained  or  i)arted  with  according  to  the  dictates 
of  justice  or  policy,  as  these  might  be  developed  by  such  investi- 
gation. Nothing  is  here  ordained  which  is  definite  in  its  charac- 
ter. Inquiry  is  all  that  is  directed.  The  language  and  plain 
import  of  the  6th  section  of  the  act  of  the  6th  of  March,  1820, 
confer  a  clear  and  positive  and  unconditional  donation  of  the  six- 
teenth section  in  every  township  :  and.  when  these  have  been  sold 
or  otherwise  disposed  of.  other  and  equivalent  lands  are  granted. 
Sale,  necessarily  signifying  a  legal  sale  by  a  competent  authority, 
is  a  dis^iDosition,  final  and  irrevocable,  of  the  land.  The  phrase 
•'or  otherwise  disposed  of."*  must  signify-  some  disposition  of  the 
propert}^  equally  efficient,  and  equally  incompatible  with  any  right 
in  the  State,  present  or  potential,  as  deducible  from  the  act  of 
1820,  and  the  ordinance  of  the  same  year.  Upon  an}--  other 
hypothesis,  the  right  to  the  sixteenth  section  would  attach  under 
the  provision  of  the  act  of  1820  ;  the  State  would  still  have  the 
title,  and  could  recover  the  section  specifically,  and  tiiere  would 
be  no  necessity  for  providing  for  an  equivalent  for  that  section. 

Under  our  interpretation  of  the  acts  of  ^Nlarch  3.  1811,  and  of 
May  24,  1828,  no  title  can  have  passed  to  the  proprietors  of  the 
La  Motte  Mine  lands.  The  reply  of  the  lieutenant  governor. 
Delassus,  to  the  petition  of  the  applicants  for  the  mine,  acknowl- 


458  Ham  v.  State  of  Missouri. 

edges  explicitly  the  absence  of  all  power  in  that  otHcer  to  make 
the  grant  asked  for.  and  refers  those  petitioners  to  the  intendant 
general,  as  the  only  functionary  possessing  authority  to  make  it. 
This  officer  took  no  further  action  upon  the  petition  than  to  order 
its  translation  into  the  Castilian  language. 

On  the  27th  of  December,  1811,  this  claim  was  before  the  com- 
missioners for  the  examination  of  land  titles  in  the  State  of 
Louisiana,  and  was  rejected  by  them.  From  this  period  of  time 
down  to  the  24th  of  May,  1828,  no  grant  from  the  United  States,  nor 
evidences  of  title  from  any  source,  except  those  already  referred 
to,  have  been  shown  by  the  plaintiff  or  those  under  whom  he 
claims.  In  the  meantime,  the  United  States,  the  undoubted  legal 
owners  of  the  land  in  controversy,  by  the  act  of  March  6th,  1820, 
bestow  it  on  the  State,  as  they  had  full  authority  so  to  do — bestow 
the  specific  section,  it  never  having  been  disposed  of  within  the 
intent  and  meaning  of  the  6th  section  of  the  act  last  mentioned. 

The  confirmation  in  1828,  and  the  patent  of  the  25th  of  March. 
1839,  professing  to  confer  no  title  but  such  as  remained  in  the 
United  States  at  those  periods  respectively,  and  the  grant  of  the 
sixteenth  section  in  township  34,  range  east,  comprised  within  the 
survey  of  the  Mine  la  Motte,  having  been  made  seven  j^ears 
anterior  to  the  confirmation,  which  constitutes  the  only  ground  of 
title  in  the  claimants  of  the  mine,  the  pretentions  of  the  confirmees 
to  the  section  in  controversy  must  be  regarded  as  without  founda- 
tion and  utterly  null. 

The  view  which  this  court  has  taken  of  the  evidence  in  this 
cause,  and  of  the  law  as  applicable  to  that  evidence,  dispenses 
with  any  necessity  for  an  examination  seriatiin  of  the  instructions 
asked  by  the  plaintiff  in  error  upon  the  trial  of  the  indictment, 
and  refused  by  the  court.  It  is  sufficient  to  remark,  that  the  posi- 
tions assumed  in  the  instructions  so  prayed  for,  being  incompa- 
tible with  the  law  of  this  case  as  expounded  b}^  this  court,  we  deem 
those  instructions  to  have  been  properly  refused.  It  is  the  opin- 
ion of  this  court,  that  the  decision  of  the  Supreme  Court  of  the 
State  of  ^Missouri,  pronounced  in  this  cause,  sustaining  that  of  the 
circuit  court,  is  correct,  and  ought  to  be,  as  it  is  hereby — 

Affirmed. 

Mr,  Justice  Nelson  : 

I  concur  in  the  judgment  of  the  court  upon  the  ground  that, 
though  the  10th  section  of  the  act  of  March  3,  1811,  had  the  effect 


Cooper  v.  Roberts.  459 

to  prevent  the  title  of  ^Missouri  to  this  land  from  vestini;,  until 
the  final  decision  by  Congress  upon  the  claim  of  Valle  and  others, 
yet  the  act  of  INIay  24.  1828.  confirming  lands  to  Valle  and  others, 
operated  as  such  final  decision,  and,  by  its  true  construction, 
excepted  out  of  the  confirmation  so  much  of  the  land  as  was 
included  in  section  sixteen,  the  public  surveys  of  the  township 
having  been  made  before  the  passage  of  the  last-mentioned  act. 
I  do  not  know  that  the  opinion  of  the  court  is  intended  to  go  further 
than  this.     If  it  does,  I  do  not  assent  thereto. 

Mk.  Justice  Curtis  concurred  with  ^Ir.  Justice  Nelson. 

Mr.  Justice  Grier  also  concurred  with  Mr.  Justice  Nelson. 

Note. —  The  State  is  estopped  from  claiming'  section  1'5  where  another 
section  has  been  selected  in  lieu  of  it  and  sold  bj^  the  State.  Slate- v. 
Deni,  IS  ^lo.,  313  The  same  doctrine  applied  to  a  railroad  company 
where  indemnity  had  been  selected,  raclfic  R.  R.  Co.  v.  Lindcll.,  39  'Mo.* 
329.     Also,  see  Gilmer  \.  Foiiidexlei\  10  Howard,  '2"( . 


James  M.  Cooper,  plaintiff  in  error.  /•.  Enoch  C.  Roberts. 

December  Term.  18.5."). — 18  Howard.  173  .-  1  Miller.  147. 
Schodl  Lands — Sixtcenlh  Sedio/i — L'esercction  on  Accoinil  of  Mrneruh. 

1 .  I'he  act  of  Congress  authorizing  Michigan  to  organize  as  a  State,  like 

all  other  similar  acts,  granted  the  sixteenth  section  of  every  town- 
ship to  the  >tate  for  school  purposes. 

2.  ^^■llen  the  State  accepted  this  act.  the  grant  became  a  contract  or 

compact  between  the  State  and  the  United  States. 

3.  As  the  government   extended  its   -jurveys,   so  tliat   the  location   of 

these  sections  was  ascertained,  the  title  in  the  State  became  com- 
plete. 

4.  .Neither  a  lease  made  by  tlic  United  States  for  mining  purposes,  nor 

the  acts  of  Congress  of  March  1,  1847,  and  September  1,  IS.iO,  were 
intended  to  or  did  impair  the  title  of  the  State  to  these  sections,  nor 
was  the  consent  of  ("ongress  necessary  to  a  valid  sale  by  the  State. 

5.  A  trespasser  updn  one  of  these  sections,  claiming  a  title  adverse  to 

tliat  of  the  State  under  the  compact  aforesaid,  has  no  right  to  inipiire 
into  mere  irregularities  in  the  mode  by  which  the  State  sells  tlie  land 
under  her  own  statutes.     He  lla^  no  interest  in  that  (piestion. 

Writ  of  error  to  the  Circuit  (\)urt  for  the  District  of  Michigan. 
The  case  is  well  stated  in  the  opinion. 

Mr.  Bael  and  Mr.  Vinton  for  plaintifl"  in  error. 
Mr.  Truman  Smith  for  defendant. 


460  Cooper  v.  Roberts. 

Mi;.  -Irsru'E  Camphet.l  delivered  the  opinion  of  the  court. 

Tlie  plaintirt'  sued  in  ejectment,  to  recover  a  portion  of  section 
No.  16,  in  township  No.  50  north,  of  range  39  west,  lying  within 
the  mineral  district,  south  of  Lake  Superior,  in  Michigan. 

His  case  affirms  that  this  section  had  been  appropriated  by  the 
United  States  to  the  State  of  IVIichigan,  for  the  use  of  schools,  in 
their  compact,  by  which  that  State  became  a  member  of  the 
Union  ;  that  the  governor  of  Michigan  issued,  in  November,  18.51, 
to  Alfre<;l  Williams,  a  patent,  evincing  a  sale  of  that  section  under 
the  laws  of  Michigan,  in  Februar3^  1851 ;  that  he  lias  a  convey- 
ance from  the  patentee,  and  that  the  defendant  is  a  tenant  in 
possession,  withholding  the  locus  in  quo  from  him.  The  defend- 
ant, to  support  his  issue,  relies  upon  a  license  given  in  1844.  by 
the  mineral  agent  of  the  United  States  for  that  district,  empower- 
ing the  donee  to  examine  and  dig  for  lead,  and  other  ores,  for  the 
term  of  one  year,  and  within  that  term  to  mark  out  and  define  a 
specific  tract  of  land,  not  to  exceed  three  miles  square,  for  mining 
purposes  ;  and.  if  he  should  fulfill  this  and  other  conditions,  he 
was  to  become  entitled  to  a  lease  for  three  years,  with  a  privilege 
of  one  or  two  renewals,  under  restrictions.  The  Secretary  of 
War,  in  September,  1845,  executed  a  lease  for  a  tract  three  miles 
square,  which  the  donee  of  the  license  had  selected,  and  which 
included  the  Iocais  in  quo,  and  stipulated  to  renew  it,  if  Congress 
shall  not  have  passed  a  law  "directing  the  sale  or  other  disposi- 
tion of  these  lands,"  and  if  the  lessee  shall  have  complied  with 
all  the  conditions  of  the  present  lease,  and  tendered  a  bond  for 
the  fulfillment  of  the  conditions  of  the  new  lease,  as  described 
in  the  act.  This  lease  came  to  the  Minnesota  INIining  Company 
by  assignment,  and  that  compan3%  in   1847,  and  from  thence  till 

1851,  held  possession  of  the  land  described  in  the  declaration, 
erected  valuable  improvements,  and  made  successful  explorations 
for  copi>€r  upon  it.  In  November,  1850,  the  company  applied  to 
the  proper  oflScers  of  the  land  office  to  enter  the  land  comprised 
in   the  lease,  and    from  thence  till  the  date  of  their  patent,  in 

1852,  the  right  of  the  company  to  secure  the  locus  in  quo  by  entry 
was  in  dispute  in  the  land  office  of  the  United  States.  In  Sep- 
tember, 1851,  the  Secretary  of  the  Interior  determined  adversely 
to  the  claim  of  the  company,  and  in  favor  of  the  claim  of  Michi- 
gan ;  and.  in  1852,  upon  proofs  that  the  company  had  complied 
with  the  lease,  while  he  reaffirmed  his  conclusions  in  favor  of 
Michigan,  allowed  the  entry  of  the  company,  but  with  a  reserva- 


Cooper  v.  Roberts.  461 

tioii  of  the  rights  oi"  Michigan.  Tiie  section  No.  IG  aforesaid, 
was  survej'^ed  in  the  summer  of  1847,  and  the  portion  in  contro- 
versy, in  the  report  of  the  geological  survey  of  the  district,  was 
returned  to  the  land  office  as  containing  mines  of  copper.  There 
was  no  application  to  the  department  of  public  lands  to  renew 
the  lease  held  by  the  company,  for  the  reason  (it  is  said)  that  the 
system  of  letting  mineral  lands  of  this  kind  had  been  abandoned, 
upon  the  doubts  expressed  by  the  attorney  general,  in  184G.  of 
the  legality  of  such  leases.  Upon  the  trial  of  the  cause  in  the 
circuit  court,  the  plaintiff  moved  the  court  for  instructions  to  the 
jury,  that,  upon  the  facts,  he  was  entitled  to  a  verdict,  and  tliat 
the  defendant's  patent  was  invalid.  The  court  refused  the 
prayer,  and  told  the  jury  "'that,  by  the  act  of  Congress  of  1st 
March,  1847,  all  the  mining  lands  within  the  district  reported, 
were  taken  out  of  the  operation  of  the  general  law  for  the  dis- 
posal of  the  public  lands,  in  pursuance  of  an  established  policy 
to  reserve  from  the  ordinary  mode  of  disposino:  of  the  public 
lands  those  that  contained  valuable  salt  springs,  lead  mines,  &c., 
that  they  might  be  leased  or  disposed  of  to  purchasers  having  full 
knowledge  of  their  value,  by  reason  of  the  salt  springs  or  mineral 
ores  they  contained,  at  their  full  value,  for  the  public  benefit. 
That,  by  the  above  act.  all  the  mineral  lauds  reported  by  the  geol- 
ogist within  the  district,  in  pursuance  of  this  settled  i)olicy  of  the 
government,  were  appropriated  and  disposed  of  without  reference 
to  the  school  reservation,  the  appropriation  of  the  land  being 
made  before  the  surveys  were  executed,  and  before  the  locality  of 
section  16  could  be  known.  And.  as  it  appears  from  the  report 
of  the  geologist  that  the  land  in  controversy  contains  valuable 
minerals,  and  was  within  the  boundaries  of  the  lease  under  which 
the  Minnesota  Company  claim,  and  that  they  had  made  large 
expenditures  thereon  for  mining,  were  entitled  to  the  right  of 
purchase,  as  provided  in  the  third  section  of  the  above  law  ;  and 
having  paid  for  the  same,  it  was  a  disposition  of  the  land  which 
Congress  had  a  right  to  make,  and  was  an  exercise  of  power 
within  the  grant.  That  the  setting  apart  of  another  section  adja- 
cent, will  satisfy  the  grant  to  the  State." 

Our  first  inquiry  will  be  into  the  nature  of  the  right  of  the 
State  of  Michigan  to  section  No.  16.  in  the  townaliips  of  that  State, 
and  the  effect  of  the  discovery  of  minerals  in  such  a  section  upon 
that  right.  The  practice  of  setting  apart  section  No.  16  of  every 
township  of  public  lands,  for  the  maintenance  of  public  schools, 


462  Cooper  v.  Roberts. 

is  traceable  to  the  ordinance  of  17H5,  being  the  first  enactment 
for  the  disposal,  by  sale,  of  the  public  lands  in  the  western  terri- 
tory. 

The  appropriation  of  public  lauds  for  that  object  became  a 
fundamental  principle  by  the  ordinance  of  1787,  which  settled 
terms  of  compact  between  the  people  and  States  of  the  North- 
western Territory  and  the  original  States,  unalterable  except  by 
consent.  One  of  the  articles  affirmed  that  "religion,  morality 
and  knowledge,  being  necessary  for  good  government  and  the 
happiness  of  mankind,"  and  ordained  that  "  schools  and  the  means 
of  education  should  be  forever  encouraged."  This  principle  was 
extended,  first  by  congressional  enactment  (1  Stats,  at  Large,  550, 
§  6),  and  afterwards,  in  1802,  by  compact  between  the  United 
States  and  Georgia  to  the  Southwestern  Territory.  The  earliest 
development  of  this  article  in  practical  legislation  is  to  be  found 
in  the  organization  of  the  State  of  Ohio,  and  the  adjustment  of 
its  civil  polity  according  to  the  ordinance,  preparatory  to  its  ad- 
mission to  the  Union.  Proposals  were  made  to  the  inhabitants 
of  the  incipient  State  to  become  a  sovereign  community,  and  to 
accept  certain  articles  as  the  conditions  of  union,  which,  being 
accepted,  were  to  become  obligatory  upon  the  United  States.  The 
first  of  these  articles  is  :  "That  the  section  No.  16  in  every  town- 
ship, and  where  such  section  has  been  sold,  granted,  or  disposed 
of,  other  lands  equivalent  thereto  and  most  contiguous  to  the 
same,  shall  be  granted  to  the  inhabitants  of  such  township  for 
the  use  of  schools." 

A  portion  of  this  territory  had  V)een  encumbered  in  the  articles 
of  cession  by  the  States,  and  another  portion  by  Congress,  for 
the  fulfillment  of  public  obligations  prior  to  the  ordinance  of 
1785,  and  without  reference  to  the  school  reservations  ;  therefore 
uniformity  in  the  appropriation  of  the  section  No.  16  was  partially 
defeated.  The  Southwestern  Territory  was  similarly  burdened  in 
the  compact  of  cession  by  Georgia  with  the  fulfillment  of  ante- 
cedent obligations,  and  similar  paramount  obligations  have  arisen 
in  treaties  with  the  Indian  tribes  who  inhabited  it.  The  rights 
of  private  proj^erty  vested  in  the  inhabitants  ceded  with  Louisiana 
and  Florida,  and  guaranteed  to  them  in  the  treaties  of  cession, 
created  an  obstruction  to  the  same  policy  within  them  ;  but  the 
constancy  with  which  the  United  States  have  adhered  to  the  policy 
in  the  various  compacts  with  the  people  of  the  newly -formed  States, 
and  the  care  which  Congress  has  manifested  to  prevent  the  accu- 


Cooper  v.  Roberts.  463 

mulation  oi"  prior  obligations  which  might  interrupt  it.  full}'  (lis|)hiy 
their  estimate  of  its  value  and  importance.  There  is,  obvious]}-, 
a  definite  purpose  declared  to  consecrate  the  same  central  section 
of  every  township  of  ever}'  State  which  might  be  added  to  the 
federal  system  to  the  promotion  ••  of  good  government  and  the 
happiness  of  mankind."  by  the  spread  of  "religion,  morality,  and 
knowledge."  and  thus  by  a  uniformity  of  local  association  to  plant 
in  the  heart  of  every  community  the  same  sentiments  of  grateful 
reverence  for  the  wisdom,  forecast,  and  magnanimous  statesman- 
ship of  those  who  framed  the  institutions  for  these  new^  States 
before  the  constitution  for  the  old  had  yet  been  modeled.  lias 
the  discovery  of  minerals  of  value  upon  this  section  lieen  deemed 
a  sufficient  cause  for  its  withdrawal  from  the  operation  of  this 
policy  and  the  compacts  which  develop  it? 

The  ordinance  of  1785  dedicated  the  section  No.  16  for  the 
maintenance  of  public  schools,  and  in  each  sale  of  the  public 
lands  there  was  by  the  same  ordinance  a  reservation  of  one-third 
part  of  all  gold,  silver,  lead  and  copper  mines  within  the  town- 
ship or  lot  sold.  No  reservations  were  afterwards  made  of  gold, 
silver,  or  copper  mines  until  the  acts  of  IVIarch.  1847.  By  the  act 
of  March  26,  1804,  and  the  act  of  March,  1807.  every  "grant  of 
a  salt  spring  or  a  lead  mine  thereafter  to  be  made,  which  had  been 
discovered  previously  to  the  purchase  from  the  United  States,  was 
to  be  considered  as  null  and  void."  (2  Stats,  at  Large,  279,  §  6  ; 
449.  §  6.)  These  statutes  indicate  a  policy  to  withdraw  from  sale 
lands  containing  these  minerals  ;  but  the  compacts  have  been 
made  without  such  a  reservation,  nor  has  the  usage  of  the  land 
office  interpolated  such  an  exception  to  the  general  grant  of  the 
section  No.  16  for  the  use  of  schools. 

The  grant  of  the  section  No.  16  for  the  use  of  schools  can  be 
executed  without  violating  the  spirit  of  the  legislation  upon  salt 
springs  or  lead  mines  ;  and.  as  we  have  seen,  no  statute  prior  to 
the  admission  of  Michigan  to  the  Union  contains  an  appropria- 
tion or  reservation  of  other  mineral  lands.  The  State  of  Michigan 
was  admitted  to  the  Union  with  the  unalterable  condition  "'that 
every  section  No.  16  in  every  township  of  the  public  lands,  and 
where  such  section  has  been  sold  or  otherwise  disposed  of.,  other 
lands  equivalent  thereto  and  as  contiguous  as  may  be.  shall  be 
granted  to  the  vState  for  the  use  of  schools."  We  agree  that, 
until  the  survey  of  the  township  and  the  designation  of  the  specific 
section,  the  right  of  the  State  rests  in  compact — binding,  it  is  true. 


464  Cooper  v.  Roberts. 

the  i)uhlic  laitli.  and  dei)en(lent  for  execvition  upon  the  political 
authorities.  Courts  of  justice  have  no  authority  to  mark  out  and 
define  the  land  which  shall  be  subject  to  the  grant :  but  when  the 
political  authorities  have  performed  this  dut3\  the  compact  has 
an  object  upon  which  it  can  attaclu  and  if  there  is  no  legal  im- 
pediment the  title  of  the  State  becomes  a  legal  title.  The  Jus  ad 
rem  b.y  the  performance  of  that  executive  act  becomes  a.  jus  in  re, 
judicial  in  its  nature,  and  under  the  cognizance  and  protection  of 
the  judicial  authorities,  as  well  as  the  others.  {Gaines  v.  Nichol- 
son. 9  How..  356.) 

The  question  now  arises  whether  the  act  of  March  1,  1847. 
created  a  legal  impediment  to  the  operation  of  this  principle, 
either  by  the  reservation  of  the  land  for  public  uses  or  by  its 
appropriation  to  superior  claims.  In  March.  1847.  Congress 
established  a  land  district  in  this  region  for  the  disposal  of  the 
public  lands.  It  directed  a  geological  survey  for  the  ascertain- 
ment of  those  containing  valuable  ores,  whether  of  lead  or  copper, 
and  a  report  to  the  laud  office.  It  provided  for  the  advertisement 
and  sale  of  such  lands,  departing  in  a  measure  from  that  usual 
mode  as  to  the  length  of  the  notice  and  the  amount  of  price,  and 
in  reference  to  the  remainder  of  the  lands  it  applied  the  usual 
regulations.  To  the  section  containing  these  directions  (9  Stats, 
at  Large,  146.  §  2).  there  is  added  an  exception  from  such  sales 
(section  No.  16)  -'for  the  use  of  schools,  and  such  reservations  as 
the  President  shall  deem  necessary  for  public  uses."  It  has  been 
argued  that  this  exception  is  only  applicable  to  the  lands  not  con- 
tained in  the  geological  report,  and  that  the  mineral  lands  "were 
appropriated  and  disposed  of  without  reference  to  the  school 
reservation  by  this  section  of  the  act.""  But  it  does  no  violence 
to  the  language  to  embrace  within  the  exception  all  the  sales  for 
which  the  section  provides,  and  we  cannot  suppose  that  Con- 
gress could  be  tempted,  with  the  hope  of  a  small  additional  price 
which  is  imposed  upon  the  purchasers  of  the  mineral  lands,  to 
raise  a  question  upon  its  compact  with  Michigan,  or  to  disturb 
its  ancient  and  honored  policy.  We  think  the  interpretation  which 
claims  this  as  nn  exception  in  favor  of  jNIichigan  is  to  1)e  preferred 
to  that  which  excludes  her  from  the  mineral  lands  under  this  com- 
pact ;  and  this  conclusion  is  strengthened  by  the  fact  that  the 
power  of  the  President  to  make  useful  public  reservations  is  con- 
nected in  the  exception  with  the  school  reservations.  There  could 
be  no  reason  for  limiting  the  power  of  the  President  to  a  single 


Cooper  r.  Roberts.  465 

class  of  the  pu])lic  lands  and  to  exclude  liim  from  another  in  the 
same  district.  We  conclude  that  this  act  does  not  withdraw  the 
mineral  lands  from  the  compact  with  Michigan. 

Did  the  execution  of  tlie  lease  by  the  Secretary  of  War,  in  184o, 
before  the  survey  of  the  lands,  dispose  of  these  lands  so  as  to 
defeat  the  claim  of  the  State?  The  Minnesota  Mining  Company, 
at  the  date  of  the  act  of  March  1,  1847,  held  the  unexpired  lease 
by  assignment,  and  continued  to  perform  its  conditions  until  their 
patent  was  issued. 

The  3d  section  of  thnt  act  authorized  the  persons  in  possession 
under  such  a  lease,  who  had  fulfilled  its  conditions,  to  enter  in  one 
tract  all  the  land  included  in  it.  at  a  diminished  price,  "during 
the  continuance  of  the  lease." 

The  4th  section  directed  the  sale  of  the  mineral  lands  contained 
in  the  report,  but  with  a  proviso,  that  none  of  the  lands  contained 
in  any  outstanding  lease,  whose  conditions  had  been  fulfilled, 
should  be  sold  till  the  expiration  of  the  lease,  either  "  by  efflux  of 
time,  voluntary  surrender,  or  other  legal  extinguishment." 

The  act  of  Congress  of  September,  1850  (9  Stats,  at  Large,  472), 
abrogated  such  of  the  clauses  of  the  act  of  1847,  which  distin- 
guished the  mineral  from  other  public  lands,  and  placed  them 
alike  under  the  ordinary  system  for  the  disposal  of  the  public 
domain,  but  reserved  to  lessees  and  occupants  the  privileges  con- 
ferred by  the  act  of  1847. 

From  that  time,  therefore,  the  argument  "that  the  mining  lauds 
within  the  district  were  taken  out  of  the  general  law  for  the  dis- 
posal of  the  public  lands,  by  the  act  of  March,  1847,"  lost  all  its 
cogency,  and  the  rights  of  the  IVIinjiesota  Company  depended 
entirely  upon  the  validity  of  the  lease  and  the  protection  accorded 
to  the  lessee.  The  lease  expired  by  -'efflux  of  time"  in  Septem- 
ber, 1848.  There  was  no  renewal  of  the  lease,  for  the  d^iible 
reason  that  its  original  validity  was  doubted  by  the  highest  execu- 
tive authority,  and  those  doubts  were  submitted  to  bj^  the  lessee, 
and  because  Congress  had  passed  the  law  for  the  disposal  of  the 
mineral  lands,  which  determined  the  covenant  for  renewal,  by  the 
terms  of  the  lease  itself. 

Hence,  had  there  been  a  legal  impediment  to  the  execution  of 
tlie  compact  with  Michigan,  erected  either  by  the  second  section 
of  the  act  of  1847.  which  separated  for  some  purposes  the  mineral 
from  other  public  lands,  or  b^'  the  privileges  granted  to  lessees  or 
their  assigns,  in  the  3d  section  of  that  act.  it  was  removed  by  the 

30 


466  Cooper  v.  Roberts. 

repealing  clause  of  the  act  of  I80O,  and  the  non-compliance  with 
the  conditions  on  which  the  privileges  depended.  The  section 
No.  16  was,  at  that  date,  disencumbered,  and  subject  to  the 
operation  of  the  compact,  whatever  might  have  been  its  pre-ex- 
isting state.  That  compact  had  not  been  fulfilled  by  an  assign- 
ment to  the  State  "of  equivalent  lands,  contiguous  as  may  be," 
under  the  act  of  May  20,  1826.     (4  Stats,  at  Large,  179.) 

Shortly  after  the  passage  of  the  act  of  1850,  we  find  Michigan 
asserting  her  claim  to  this  section,  advertising  it  for  sale,  and 
selling  it  to  the  vendor  of  the  plaintiff.  We  also  find  the  officers 
of  the  land  office  of  the  United  States  denying  the  right  of  the 
Minnesota  Mining  Company  to  enter  the  land,  and  admitting  the 
superior  title  of  the  State  of  Michigan,  and  finally  reserving  those 
rights  in  the  patent  issued  to  the  company. 

We  entirely  concur  with  these  officers  in  their  decision  on  the 
subject  of  contest,  for  the  reasons  we  have  given.  We  think  that 
the  jury  should  have  been  instructed,  that  the  section  No.  16  was 
vested  in  the  State  of  Michigan  at  the  date  of  the  entry  by  the 
Minnesota  Mining  Company,  and  that  the  company  did  not 
acquii'e  title  by  its  patent. 

The  defendant  insists  that  the  title  of  the  plaintilf  is  invalid 
for  the  reason  that  the  State  of  Michigan  was  not  empowered  by 
Congress  to  sell  the  school  reservations.  Where  such  grants  have 
been  made  to  the  State,  or  to  the  inhabitants  of  the  township  for 
the  use  of  schools,  it  has  been  usual  for  Congress  to  authorize  the 
sale  of  the  lands,  if  the  State  should  desire  it.  (4  Stats,  at  Large, 
138,  237,  298  ;  5  lb.,  600.) 

But  this  consent  was  not,  perhaps,  necessary,  and  the  applica- 
tion for  it  is  but  evidence  of  the  strong  desire  of  the  State  author- 
ities to  act  in  good  faith,  and  to  keep  within  the  pale  of  the 
law.\  (4  Ala.  R.,  622.) 

The  trusts  created  by  these  compacts  relate  to  a  subject  cer- 
tainly of  universal  interest,  but  of  municipal  concern,  over  which 
the  power  of  the  State  is  plenary  and  exclusive.  In  the  present 
instance,  the  grant  is  to  the  State  directly,  without  limititation  of 
its  power,  thoiigh  there  is  a  sacred  obligation  imposed  on  its 
public  faith.  We  think  it  was  competent  to  Michigan  to  sell  the 
school  reservations  without  the  consent  of  Congress. 

The  defendent  further  objects,  that  the  officers  of  the  State 
violated  the  statutes  of  Michigan  in  selling  these  lands,  after  they 
were  known,  or  might  have  been    known,  to  contain  minerals. 


SPRiN(iFiELD  Township  v.  Quick.  467 

Without  a  nice  inquiiy  into  these  statutes,  to  ascertain  whether 
they  reserve  sucli  lands  from  sale,  or  into  the  disputed  fact  whether 
they  were  known,  or  nii<j:ht  have  been  known,  to  contain  minerals, 
we  are  of  the  opinion  that  the  defendant  is  not  in  a  condition  to 
raise  the  question  on  this  issue. 

The  officers  of  the  State  of  Michigan,  embracing  the  chief 
magistrate  of  the  State,  and  who  have  the  charge  and  superin- 
tendence of  this  property,  certify  this  sale  to  have  been  made 
pursuant  to  law,  and  have  clothed  the  purchaser  with  the  most 
solemn  evidence  of  title.  The  defendant  does  not  claim  in 
privity  with  Michigan,  but  holds  an  adverse  right,  and  is  a  tres- 
passer upon  the  land  to  which  her  title  is  attached. 

Michigan  has  not  complained  of  the  sale,  and  retains,  so  far  as 
the  case  shows,  the  price  paid  for  it.  Under  these  circumstances, 
we  must  regard  the  i)atent  as  conclusive  of  the  fact  of  a  valid  and 
regular  sale  on  this  issue. 

Upon  the  whole  record,  we  think  the  jury  should  have  been 
instructed,  that  if  they  found  the  facts  thus  given  in  evidence  to 
be  true,  the  plaintifl*  was  entitled  to  recover  the  premises  in 
question. 

Judgment  reversed;  cause  remanded — a  venire  to  issue. 

XOTE. — For  saniP  cas;e  agahi  before  Supreme  Court,  see  Roberts  v. 
Cooper,  20  Howard.  4(57. 


Sprixgfield    ToA\TifSHiP,  plaiutiff  in  error,  v.  John  H.  Quick, 
auditor,  and  Wllliam  Robesox,  treasurer  of  Franklin  Co. 

December  Term,  is."i9.— "i-J  Howard,  5G.— 3  Miller,  '285. 

School  Lands. — Apjilication  of  the  Funds  arisiiii/  from  tlieir  S(de. 

1 .  The  fund  arising  from  the  sale  of  the  sixteenth  section  in  each  town- 

ship is,  by  act  of  (ongre.ss,  to  be  used  exclnslvel}'  for  the  scliools  in 
that  township. 

2.  But  an  act  of  the  State  legislature  which,  preserving  this  principle, 

equalizes  the  distribution  of  school  funds  from  other  sources  among^ 
all  the  townships,  including  this  fund,  but  in  sucii  a  manner  that 
none  of  it  is  divreted,  does  not  violate  the  act  of  Congress,  though  a 
township  may  not  get  its  proportionate  share  of  the  fund  arising 
from  other  sources,  by  reason  of  the  amount  it  receives  from  the 
sale  of  its  sixteenth  section. 


468  Springfield  Township  v.  Quick. 

Writ  of  errou  to  the  Supreme  Court  of  Indiana. 

The  State  of  Indiana  passed  a  statute  which  directed  that  all 
the  school  fund,  to  which  each  county  was  entitled,  including  that 
from  the  sale  of  the  sixteenth  section,  should  be  divided  among 
the  townships  according  to  the  number  of  cliildren  therein.  The 
State  court  held  this  unconstitutional,  as  regarded  tlie  fund  arising 
from  the  sixteenth  section.  The  legislature  then  amended  the 
law  so  as  to  declare  that  all  the  funds  arising  from  that  source 
should  go  exclusively  to  the  township  in  which  the  section  lay, 
whereby  in  some  instances  an  inequality  would  result  in  the  dis- 
tribution of  the  school  fund  from  otlier  sources.  The  township  of 
Springfield,  which  did  not  get  a  proportion  of  this  latter  fund  equal 
to  other  townships,  measured  by  the  number  of  children,  by  reason 
of  the  larger  sum  arising  from  the  sale  of  its  sixteenth  section, 
brought  this  suit  to  compel  an  equal  distri1)ution  of  that  fund, 
without  regard  to  the  sixteenth-section  fund,  and  the  case  being 
decided  against  it  in  the  State  court,  lirought  this  writ  of  error. 

Mr.  Biirbour  for  plaintift"  in  error. 

Mr.  Jones  for  defendants. 

Mr.  Jt'STiCE  Catron  delivered  the  opinion  of  the  court. 

The  twenty-fifth  section  of  the  judiciary  act  declares,  that 
where  is  drawn  in  question  the  construction  of  any  statute  of  the 
United  States,  and  the  decision  is  against  the  right  set  up  or 
claimed  bj^  either  party  under  the  act  of  Congress,  such  decision 
may  be  re-examined,  and  reversed  or  aflfirmed,  in  the  supreme 
court,  on  writ  of  error. 

Here  it  is  claimed,  for  the  inhabitants  of  the  townsiiip,  that 
the  fund  arising  from  the  proceeds  of  the  sixteenth  section  shall 
not  be  estimated  in  distributing  the  general  school  fund  of  the 
State  derived  from  taxes  paid  into  the  State  treasury.  The  acts 
of  the  legislature  equalize  the  amount  that  shall  be  appropriated 
for  the  education  of  each  scholar  throughout  the  State,  taking  into 
the  estimate  the  moneys  derived  from  the  proceeds  of  the  six- 
teenth sectioTi,  with  the  proviso,  that  the  whole  of  tlie  proceeds 
shall  be  expended  in  the  township.  If  it  be  more  than  an  equal 
portion  to  each  scholar  elsewhere  furnished  by  the  State  fund — 
still,  the  township  has  the  benefit  of  such  excess,  but  receives 
nothing  from  the  treasury- ;  and,  if  it  be  less,  then  the  deficiency 
is  made  up.  so  as  to  equalize  according  to  the  general  provision. 

And  tiie  question  herl  is.  whether  the  State  laws  violate  the 


State  of  Minnesota  /•  Bachelder.  469 

acts  of  Congress  providing  that  the  proceeds  ofthe  sixteenth  section 
shall  be  for  the  use  of  schools  in  the  township.  And  our  opinion 
is,  that  expending  the  proceeds  of  the  sixteenth  section  for  the 
exclusive  use  of  schools  "in  the  township'"  where  the  section 
exists,  is  a  compliance  with  the  legislation  of  Congress  on  the 
subject;  nor  is  the  State  bound  to  provide  any  additional  fund 
for  a  township  receiving  the  bounty  of  Congress,  no  matter  to  what 
extent  other  parts  of  the  State  are  supplied  from  the  treasury. 

The  law  is  a  perfectly  just  one  ;  but  if  it  were  otherwise,  and 
the  school  fund  was  distributed  partially,  nevertheless  those  receiv- 
ing the  bounty  from  Congress  have  no  right  to  call  on  this  court 
to  interfere  with  the  power  exercised  by  the  State  legislature  in 
laying  and  collecting  taxes,  and  in  appropriating  them  for  educa- 
tional purposes,  at  its  discretion. 

We  hold,  that  a  true  construction  was  given  to  the  acts  of 
Congress  referred  to.  and  order  that  the  judgment  be — 

Affirmed. 

NoTK. — The  trust  created  by  the  grant  is  a  personal  trust  reposed  in 
the  public  faith  of  the  State,  and  is  not  a  property  trust,  fastened  by  the 
terms  of  the  grant  upon  the  land  itself,  and  following  it  into  whose 
hands  soever  it  may  pass.     IninkUit  Co.  v.  District.  Covrf,  28  Mo..  449. 


The  State  of  Minnesota  v.  Bachelder. 

December  Term,  lS(i3. — 1  Wallace.  lOi). 

1.  Neither  the  act  of  Congress  of  3  March,  1849 — the  organic  law  of  the 

Teri-itorj'  of  Minnesota,  which  declared  that,  when  the  public  lands 
in  that  territory  shall  be  surveyed,  certain  sections,  designated  by 
numbers,  shall  be  and  "hereby  are"  "reserved  for  the  purpose  of 
being  applied  to  schools" — nor  the  subsequent  act  of  February  "26, 
1857,  providing  for  tiie  admission  of  that  territory  into  tlie  Union — 
and  making  the  same  reservation  for  tlie  same  object—  amounts  so 
completelj^  to  a  "dedication"  in  the  stricter  legal  sense  of  that 
word,  of  these  sections  to  school  purposes,  that  C'ongiess,  with  the 
assent  of  the  territorial  legislature,  could  not  bring  them  within  the 
term?  of  the  l^re-emption  Act  of  1841,  and  give  them  to  settlers, 
who,  on  the  faith  of  that  act.  which  had  been  extended  in  l^o4  to 
tiiis  territor}-,  liad  settled  on  and  improved  them. 

2.  'J'he  decisions  of  the  receiver  and  register  of  lands  for  the  'I'erritory  of 

Minnesota,  are  not  of  conclusive  etiicaey.  They  may  be  in(|nired 
into  and  declared  inoperative  bj'  courts. 


470  State  of  Minnesota  v.  Bachelder. 

3.  Error  will  lie  to  the  Supreme  Court  of  a  State,  under  the  25th  sec- 
tion of  the  Judiciary  Act,  where  a  statute  of  the  United  States  is 
technically  in  issue  in  the  pleadings,  or  is  relied  on  in  them,  and  is 
decided  against  by  rulings  asked  for  and  refused,  even  though  the 
case  may  have  been  disposed  of  generally  by  the  court  on  other 
grounds. 

This  was  a  writ  of  error  to  the  Supreme  C'ourt  of  the  State  of 
Minnesota,  and  was  taken  under  the  25th  section  of  the  Judiciary 
Act  of  1789,  wliich  gives  a  writ  of  error  here  in  any  case  where  is 
drawn  in  question  any  clause  of  the  constitution,  or  of  a  treaty, 
or  statute,  or  commission,  held  under  the  United  States,  and  the 
decision  is  against  the  right,  title,  privilege  or  exemption  specially 
^set  vip  or  claimed  by  either  party  under  such  clause  of  the  con- 
stitution, treaty,  statute,  or  commission. 

The  case  was  thus  :  By  the  act  of  March  3d.  1849,  the  organic 
law  of  the  Territory  of  Minnesota,  it  was  enacted,  "that  when 
the  lands  in  said  territory  shall  be  surveyed,  sections  16  and  36 
shall  be  and  the  same  hereby  are  reserved  for  the  purpose  of 
being  applied  to  schools."  A  subsequent  act,  that  of  February 
26th,  1857,  providing  for  the  admission  of  this  territory  into  the 
Union,  repeats  this  enactment,  declaring  that  these  same  num- 
bered sections  of  the  public  lands  (and  in  case  either  of  said  sec- 
tions, or  any  part  of  them,  has  been  sold  or  otherwise  disposed 
of,  other  lands  equivalent  thereto  and  as  contiguous  as  may  be) 
shall  be  granted  to  said  State  for  the  use  of  shools. 

Notwithstanding  this  intended  devotion  to  purposes  of  educa- 
tion of  these  sections  Nos.  16  and  36,  Congress,  by  an  act  of 
1854  (August  4th),  declared  that  the  provisions  of  what  is 
known  as  the  Pre-emption  Act  of  September  4th.  1841.  should 
extend  to  lands  in  Minnesota.  The  result  was  that  great 
numbers  of  persons  settled  all  over  the  State,  and  not  unfre- 
quently  settled,  in  different  townships,  upon  tracts  which,  when 
the  tracts  came  to  be  surveyed,  proved  to  bear  the  numbers  16 
and  36.  In  consequence  of  this  state  of  things,  the  territorial 
legislature  of  Minnesota  presented  (Feb.  26th.  1856)  a  memorial 
to  Congress  for  a  remedy.  The  memorial  stated  that,  by  reason 
of  the  extension  of  the  Pre-emption  Act  to  Minnesota,  many 
settlers  had  settled  and  made  improvements  by  the  erection  of 
costly  buildings  and  otherwise  upon  farms,  which,  when  the  gov- 
ernment surveys  were  made,  were  found  to  be  included  within 
the  scliool  sections,  and  that  it  would  be  unjust  to  compel  these 


State  of  Minnesota  v.  Bachelder.  471 

persons  to  repurchase,  or  lose  their  improvements  thus  made  in 
good  faith,  and  with  the  expectation  of  a  pre-emption  of  the  lot, 
and  recommended  the  passage  of  a  law  which  sliould  meet  the 
hardship  of  such  cases.  According,  on  the  3d  of  March.  1857. 
that  is  to  say,  after  the  above  mentioned  act.  providing  for  the 
admission  of  the  territory  into  the  Union,  but  before  the  accept- 
ance of  that  act  h\  the  convention  of  the  State,  and  so  before 
the  actual  incorporation  of  the  State  into  the  Union.  Congress 
passed  a  joint  resolution,  which  provided  that,  where  any  settle- 
ments by  the  erection  of  a  dwelling  house,  or  the  cultivation  of 
any  portion  of  the  land,  shall  have  been  or  shall  be  made  upon 
these  16th  or  36th  sections,  before  the  said  sections  shall  have 
been  or  shall  be  surveyed,  &c. ;  and  if  such  settlers  can  bring 
themselves  within  the  Pre-emption  Act,  then  the  riglit  of  prefer- 
ence to  such  sections  or  portions  of  them  so  settled  and  occupied 
shall  be  in  them,  the  same  as  if  such  sections  had  not  been  pre- 
viously reserved. 

The  present  suit  arose,  accordingly,  out  of  this  condition  of 
the  law,  and  was  an  ejectment  for  a  tract  numbered  1 6,  by  the 
State  of  Minnesota,  in  behalf  of  its  schools,  against  one  Bachel- 
der, the  defendant,  who  claimed  under  the  rights  given  by  the 
joint  resolution  just  al)ove  set  forth.  Bachelder  set  up,  as  his 
defence,  pre-emption  certificates  and  a  patent,  dated  August  15, 
1857,  to  two  persons  of  the  name  of  Mills — L.  and  J.  Mills — from 
whom  he  showed  title  to  himself. 

To  this,  the  plaintiff  replied  that  these  had  all  been  obtained 
by  fraud  and  misrepresentations  ;  that  the  Millses  did  not  settle 
on  the  premises,  did  not  build  a  house  there,  nor  make  any 
improvements  prior  to  the  government  survey  of  the  sections  ; 
that  in  granting  the  papers  which  he  had  granted,  the  register  and 
receiver  had  been  deceived  as  well  by  misrepresentations  of  the 
Millses  as  by  the  false  oath  of  one  George  Dazner.  whom  tliey 
produced  to  swear  to  facts  which  did  not  exist,  but  wliose  exist- 
ence was  necessary  to  bring  tlie  parties  within  the  Pre-emption 
Act.  But  the  court,  neither  on  a  demurrer  by  the  State  of  Min- 
nesota to  a  replication  by  Bachelder,  nor  on  its  offers  to  prove 
these  facts  before  a  jury,  considered  them  as  making  a  reply  to 
the  case  of  the  defendants,  as  exhibited  l\y  his  certificates  and 
patents  ;  ruling  in  eflfect  that  the  decision  of  the  register  and 
receiver  could  not  be  reviewed  nor  inquired  into  by  the  court,  and 


472  State  of  Minnesota  v.  Bachelder. 

that  tlie  remedy  of  the  State  was  through  the  commissioner  of 
said  office  or  the  Secretary  of  the  Interior. 

The  statutes  of  the  United  States,  devoting  tiie  sections  to 
school  purposes,  were  put  technically  in  the  pleadings,  their  bind- 
ing force  relied  on  by  counsel,  and  pressed  upon  the  court,  and 
rulings  under  them  asked  for  and  refused,  and  the  refusal  excepted 
to  ;  but,  although  by  being  set  out  in  the  pleadings  and  excep- 
tions, and  by  rulings  against  them,  they  were  technically  drawn 
in  question  and  decided  against,  yet  the  actual  ground  of  the 
decision  was  as  just  stated,  rather  than  specially  against  the 
statutes. 

The  correctness  of  the  view  taken  by  the  court  below,  as  to 
the  effect  of  the  register  and  receiver's  acts,  as  also  the  right  of 
the  State  to  have  a  writ  of  error  from  this  court  to  the  Supreme 
Court  of  Minnesota,  when  the  statutes  of  the  United  States  had 
not  been  otherwise  drawn  in  question  than  as  mentioned,  were 
now  the  questions  here  ;  the  former  question  being  made  by  the 
plaintiff  in  error,  the  State  of  Minnesota,  and  the  latter  by  the 
other  side. 

Mr.  Cole,  A.  G.,  of  Minnesota,  for  the  plaintiff: 
The  joint  resolution  of  Congress  is  void.  It  cannot  divest  a 
title  which  the  United  States  had  previously  granted.  The 
organic  act  of  the  territory  constituted  a  dedication  to  public 
uses,  perpetual  and  irrevocable,  and  whatever  might  have  been  its 
effect  upon  the  naked  fee.  at  least  divested  Congress  of  all  power 
of  disposition  over  the  subject-matter,  so  far  as  such  disposi- 
tion should  tend  to  impair  the  public  rights  created  by  that 
act.  The  doctrine  of  dedications  was  first  announced  in  Strange's 
Reports.  A.  D.  1725.  and  applied  to  highways.  Since  then  it  has 
been  vastly  extended.  The  donations  of  magnificent  domains  by 
Congress,  for  the  promotion  of  learning  and  the  liberal  arts  in 
the  rising  communities  of  the  west,  afford  instances  not  the  least 
striking  and  interesting  of  such  extension,  and  have  induced 
more  liberal  views.  Thus  the  doctrine  has  in  New  York  been 
applied  to  a  puV)lic  square.  {Trustees  of  Watertown  v.  Coiven,  4 
Paige,  510.)  So  it  has  also  in  Vermont.  {State  v.  Wilkinson,  2 
Vermont,  480.)  In  the  former  State  it  has  been  extended  to  a 
gift  for  religious  purposes  {Hartford  Baptist  Church  v.  Witherell, 
3   Paige,   296),   while  in  Pennsylvania  it  reaches   any  property 


State  or  Minnesota  v.  Bachelder.  473 

devoted  to  i)m-poses  of  j^eueral  education.  {Witman  v.  Lex.  17 
Sergeant  &  Kawle,  88,  91.) 

If  dedicated,  the  power  of  Congress  over  it  was  gone.  In  Wil- 
cox \.  Jackson  (13  Peters,  498),  the  court  say:  "Whenever  a 
tract  of  land  shall  have  been  once  legally  api)ro])riated  to  any 
purpose,  from  that  moment  the  land  tlius  appropriated  becomes 
reserved  from  the  mass  of  the  public  lands,  and  no  subsequent 
law,  or  proclamation,  or  sale,  would  be  construed  to  embrace  it, 
or  to  operate  upon  it,  although  no  reservation  were  made  of  it." 
And  in  the  same  case  the  court  signify  that  •■  the  same  principle 
will  apph'  to  any  land  which,  by  authority  of  hiw.  shall  have  been 
severed  from  the  public  mass." 

Neither  is  the  case  helped  by  the  memorial  from  the  territorial 
legislature.  Tlie  organic  act  (§  18),  indicates  an  intention  to  con- 
secrate these  lands  for  the  benefit  of  the  generations  who  should, 
in  future,  inhabit  the  State  ;  and  while  divesting  Congress  of  all 
power  of  disposition  over  them,  to  withhold  it  from  any  other 
body  then  in  existence.  They  are  reserved  -'for  the  purpose  of 
being  applied  to  schools  in  said  territory,  and  in  the  States  and 
territories  hereafter  to  be  erected  out  of  the  same."  They  were 
not  granted  to  the  territory,  and  were  in  no  sense  its  property. 

For  the  defendant : 

The  error  of  the  argument  is  in  assuming  this  to  be  a  "dedica* 
tion"  in  the. legal  meaning  of  the  word.  In  Post  v.  Fiersoll  (20 
Wendell,  119).  long  since  the  time  of  Strange,  the  Supreme.  Court 
of  New  York  decided  that  a  dedication  must  be  confined  to  a 
highway.  It  may  have  been  much  extended  since,  but  this  is  not 
within  the  legal  meaning  of  the  word. 

No  writ  of  error  lies  here  from  the  Supreme  Court  of  Minne- 
sota, for  no  statute  of  the  United  States  has  been  drawn  in  ques- 
tion and  decided  against.  The  court  ruled  that  it  could  not  go 
behind  the  acts  of  the  register  and  receiver,  and  so  disposed  of 
the  case.  The  fact  that  the  statutes  of  the  United  States  were 
presented  in  the  pleadings,  and  were  disposed  of  adversely  bj^  a 
judgment  which  was  based  on  other  grounds,  the  argument  from 
the  statutes  falling  in  fact  only  with  the  case  generally,  is  not 
enough. 

Reply  : 

Crovell  V.   RavdaU  (10   Peters,  368),  decides,  ••  that   it   is  not 


474  State  of  Minnesota  v.  Bachbldbr. 

necessary  that  the  question  should  appear  on  the  record  to  have 
been  raised  and  the  decision  made  in  direct  and  positive  terms, 
but  that  it  is  sufficient  if  it  appear  by  clear  and  necessary  intend- 
ment that  the  question  must  have  been  raised  and  must  have  been 
decided  in  order  to  have  induced  the  judgment."  Neither  is  it 
necessary  that  the  treaty  or  act  of  Congress  under  which  the 
party  claims  shall  be  specialh'  pleaded  or  spread  upon  the  record. 
{Hickey  v.  Starke,  1  Peters,  94.) 

The  converse  of  the  rule  holds  also  true.  Here  the  statutes 
were  drawn  in  question  by  being  on  the  record  and  issue  so  taken 
to  them,  or  by  being  made  the  subject  of  a  request  for  rulings  not 
given — a  fact  apparent  in  the  bill  of  exceptions.  When  judgment 
was  given  against  the  State  or  the  rulings  refused,  they  were  de- 
cided "  against "  in  the  most  exact  and  authoritative  form  of  legal 
understandiug. 

Mk.  JusTit  k  Nelson  delivered  the  opinion  of  the  court. 

It  is  not  important  to  inquire  as  to  the  power  of  Congress  to 
pass  this  law  independently  of  any  application  from  the  territorial 
legislature,  as  the  assent  of  the  people  through  their  convention 
by  coming  into  the  Union  as  a  State  upon  the  terms  proposed 
must  be  regarded  as  binding  the  State.  The  right  of  the  State 
to  the  school  sections  within  it  must,  therefore,  be  subject  to  the 
modification  contained  in  the  joint  resolution,  and  that  modifica- 
tion is,  that  in  case  a  person  shall  have  made  a>  settlement  upon 
any  school  section  by  the  erection  of  a  dwelling-house  on  the 
same,  or  the  cultivation  of  a\\y  portion  of  it  before  the  survey  ; 
and  further,  can  bring  himself  within  the  provisions  of  the  pre- 
emption act  of  1841,  he  shall  be  entitled  to  the  section  thus  im-" 
proved  in  preference  to  any  title  of  the  State. 

This  was  the  state  of  the  law  in  respect  to  these  school  sections 
in  Minnesota,  at  the  time  of  the  application  of  L.  and  J.  Mills  to 
the  register  and  receiver  for  the  pre-emption  of  the  premises  in 
question,  and  of  the  issuing  of  the  patent  certificate  by  them 
August  15th,  1857. 

As  we  have  seen,  the  defendant,  who  claims  under  L.  and  J.  N. 
Mills,  relies  on  these  patent  certificates  and  the  patents  issued  in 
pursuance  thereof. 

To  these  the  plaintiff  replies,  that  they  were  obtained  by  fraud 
and  misrepresentation  ;  that  L.  and  J.  Mills  did  not  settle  on  the 
premises,    nor   erect   a   dwelling-house    thereon,    nor   make  any 


State  of  Minnesota  v.  Bachelder.  475 

iini)rovements  on  tlie  same,  previous  to  the  survey  of  the  sections 
by  tlie  government;  and  besides  their  false  representations  to 
the  register  and  receiver,  they  procured  one  George  Dazner  to 
make  a  false  affidavit  as  evidence  of  the  settlements,  erection  of 
the  dwelling-houses  and  improvements  before  these  officers.  The 
court  below  refused  to  give  any  effect  to  these  facts  as  set  forth 
in  the  pleadings,  or  as  offered  to  be  proved  on  the  issues  of  fact 
before  the  jury,  and  the  ground  taken  to  uphold  these  rulings  iS' 
that  the  decision  of  the  register  and  receiver  and  certificates 
issued  were  conclusive  upon  the  court,  and  not  revisable  or  to  be 
inquired  into  ;  and  that  the  remedy  of  the  party  aggrieved  was 
by  an  application  to  the  commissioner  of  the  land  office  or  vSecre- 
tarj^  of  the  Interior. 

These  questions  have  been  so  often  before  this  court,  and  were 
so  fully  considered  in  the  last  case  {Lindsey  et  aJ.  v.  Hmces  et  cd., 
2  Black,  254,  557,  558.  vSee  also,  O'Brien  v.  Perrij.  1  Id..  139). 
where  the  authorities  are  collected,  that  it  would  be  a  waste  of 
time  to  re-examine  them. 

A  court  of  equity  will  look  into  the  proceedings  before  the 
register  and  receiver,  and  even  into  those  of  the  land  office  or 
other  offices,  where  the  right  of  property  of  the  party  is  involved, 
and  correct  errors  of  law  or  of  fact  to  his  prejudice.  The  pro- 
ceedings are  ex  parte  and  summary  before  these  officers,  and  no 
notice  is  contemplated  or  provided  for  by  the  pre-emption  laws 
as  to  parties  holding  adverse  interests,  nor  do  they  contemplate  a 
litigation  of  the  right  between  the  applicant  for  a  pre-emption 
claim  with  a  third  party.  The  question  as  contemplated  is 
between  the  settler  and  the  government,  and  if  a  compliance  with 
the  conditions  is  shown  to  the  satisfaction  of  the  officers,  the 
patent  certificate  is  granted. 

The  court  below,  therefore,  erred  in  their  rulings  on  the  demur- 
rer, and  also  on  the  trial  of  the  issues  in  fact.    • 

A  point  is  made  under  the  25th  section  of  the  Judiciary  Act, 
that  this  court  has  no  jurisdiction  to  reverse  the  judgment  of  the 
court  below.  But  the  right  of  the  State  to  these  school  sections 
rests  upon  acts  of  Congress,  whicli  were  set  up  and  relied  on  in 
this  case,  and  the  decision  of  the  court  below  against  it. 

The  judgment  of  the  court  below  is  reversed  witli  costs,  and  the 
cause  remanded,  with  directions  to  enter  judgment  overruling  the 
demurrer  to  plaintiff's  replications,  and  to  issue  venire  de  novo,  &c. 

Jiidgment  accordingly. 


476  Heydenfeldt  v.  The  Minincj  Company. 

IIkyj)knfi:li)T   r.  Daxky  Gold  and  Silvii,k  Mining  Company. 
October  Term,   ISTO.— ;!  Otto.  (iiU. 

1.  At  the  time  of  tlie  passage  of  the   Nevada  Enabling-  Act,  approved 

March  21,  1864  (13  Stat..  30).  sections  16  and  36  in  the  several  town- 
ships in  Nevada  had  not  been  snrveyed,  nor  had  (Congress  then  made, 
or  anthorized  to  be  made,  any  disposition  of  the  public  domain 
within  her  limits. 

2.  The  words  of  present  grant  in  the  seventh  section  of  that  act  are 

restrained  by  words  of  qualification  which  were  intended  to  protect 
the  proposed  new  State  against  loss  that  might  happen  through  the 
subsequent  action  of  Congress  in  selling  or  disposing  of  the  public 
domain.  If  by  such  sale  or  disposal  the  whole  or  any  part  of  the 
sixteenth  or  thirtj'^-sixth  section  in  any  township  was  lost  to  the 
State,  she  was  to  be  compensated  by  other  lands  equivalent  theri  to, 
in  legal  subdivisions  of  not  less  than  one  quarter-section  each. 

3.  A  qualitied  person,  whose  settlement  on  mineral  lands  which  embrace 

a  part  of  either  of  said  sections  was  prior  to  the  survey  of  them  by 
the  United  States,  and  who,  on  complying  with  the  requirements  of 
the  act  approved  .Inly  'J6,  1860  (14  Stat.,  'irii),  received  a  patent  for 
such  lands  from  the  l  ■  nited  ^  tates,  has  a  better  title  thereto  than  has 
the  holder  of  an  older  patent  therefor  from  the  State. 

4.  'i'he  legislative  act  of  Nevada,  of  February  13,  1867,  recognized  the 

validity  of  the  claim  of  the  United  States  to  the  miiieral  lands  within 
that  State. 

Erroi!  to  the  Supreme  Court  of  the  State  of  Nevada. 

This  i.s  an  action  of  ejectment  bronsrht  by  Heydenfeldt  in  the 
District  Court  of  the  First  Judicial  District  of  Nevada,  aoainst  the 
Daney  Gold  and  Silver  Mining  Company.  The  case  was  tried  by 
the  court,  which  found  the  following  facts  : 

On  the  fourteenth  day  of  July,  1868.  the  State  of  Nevada  issued 
to  one  William  Webelhuth  its  patent  for  the  west  half  of  the 
southwest  quarter  of  section  16,  township  16  north,  range  21  east 
(lying  in  Lyon  County,  State  of  Nevada),  Mount  Diablo  base  and 
meridian,  containing  eighty  acres,  according  to  the  official  plat 
of  the  survey  of  public  lands  as  made  by  the  United  States  sur- 
veyor general  for  the  district  of  Nevada ;  which  said  patent  was 
recorded  in  the  recorder's  office  of  the  county  of  Lyon  on  the 
twenty -fifth  day  of  July,  1868,  and  was  issued  by  the  State  author- 
ities under  and  by  virtue  of  the  .statute  of  Nevada,  conveying 
lands  assumed  to  have  been  granted  to  the  State  by  the  act  of 
Congress  approved  March  21,  1864.  entitled  "An  act  to  enable  the 


Heydenfeldt  v.  The  Mining  Company.  477 

people  of  the  Territoiy  of  Nevada  to  form  a  State  govennneut 
upon  certain  conditions." 

On  the  eioliteenth  day  of  August,  1H73.  AVilliam  AVebelhuth.  Ii^- 
deed  of  conve3-ance  duly  signed,  sealed,  and  acknowledged,  con- 
veyed the  same  premises  to  one  Philip  Kitz,  which  deed  was 
recorded  in  the  recorder's  office  of  the  county  of  Lyon  .January 
13.  1874. 

On  the  ninth  day  of  January.  1874,  Philip  Kitz,  by  deed  duly 
signed,  sealed,  and  acknowledged,  conveyed  the  same  premises 
to  this  plaintiff,  which  said  deed  was  duly  recorded  in  the 
recorder's  office  of  the  county  of  Lyon  on  the  same  day. 

The  defendant  is  in  the  possession  of  the  premises.  The 
plaintitf,  prior  to  bringing  this  action,  demanded  the  possession 
thereof,  but  the  same  was  refused. 

On  the  second  daj'^  of  March.  1874.  the  United  States,  by  its 
proper  authorities,  gi'anted  to  the  defendant,  by  its  patent,  in  due 
and  regular  form,  lot  No.  72,  embracing  a  portion  of  section  16, 
in  township  16  north,  of  range  21  east.  Mount  Diablo  meridian,  in 
the  Devil's  Gate  mining  district,  in  the  county  of  Lyon  and  State 
of  Nevada,  in  the  district  of  lands  subject  to  sale  at  Carson  City, 
embracing  thirteen  (13)  acres  and  seventy -eight  one-hundred  ths 
(.78)  of  an  acre,  more  or  less,  with  the  exclusive  right  of  possession 
and  enjoyment  of  all  tiie  laud  included  within  the  exterior  lines 
of  the  survey-  of  said  premises  not  expressh'  excepted,  and  of  two 
thousand  linear  feet  of  Mammoth  Lode  ledge,  vein,  or  deposit  for 
said  two  thousand  feet  therein  throughout  its  entire  depth.  &c., 
which  said  grant  by  the  patent  covers  and  includes  the  lands  and 
premises  sought  to  be  recovered  by  the  plaintiff  from  the  defend- 
ant in  this  action,  and  which  said  patent  was  so  issued  to  the 
defendant  under  and  by  virtue  of  the  act  of  Congress  a])proved 
July  26.  1866,  entitled  "An  act  granting  the  right  of  way  to  ditch 
and  canal  owners  over  the  public  land,  and  for  other  purposes  : " 
the  act  amendatory  thereof  approved  July  0.  1870.  and  the  act 
approved  May  10,  1872,  entitled  "An  act  to  promote  the  devel- 
opanent  of  the  mining  resources  of  the  United  States." 

The  land  in  controversy  is  mineral  land,  containing  precious 
metals,  and  the  defendant  is  in  possession  and  is  conducting  and 
carrying  on  the  business  of  mining  thereon,  having  in  the  prosecu- 
tion of  mining  erected  and  constructed  improvements  of  the  value 
of  over  $80,000. 

In  1867,  and  prior  to  the  date  of  tlie  survey  or  a[)i)roval  of  the  sxxr- 


478  Hkydbnfeldt  v.  The  Mining  Company. 

vey  of  section  Ifi.  township  16  north,  rans^e  21  east,  by  the  United 
States,  the  defendants,  ijrantors,  and  predecessors  in  interest  had 
entered  npon  the  premises  described  by  plaintiff  in  his  complaint 
for  mining  pnrposes,  and  had  claimed  and  occupied  the  same  in 
conformity  to  the  laws,  customs,  and  usages  of  miners  in  the 
locality  and  mining  district  in  which  said  premises  are  situated, 
and  were  so  possessed  and  engaged  in  mining  thereon  when  the 
said  land  was  first  surveyed,  and  when  the  State  of  Nevada  issued 
its  patent  as  aforesaid  to  William  AVebelhuth. 

Thereupon,  as  conclusions  of  law,  tiie  court  found — 

The  act  of  Congress  approved  March  21,  1864,  enabling  the 
people  of  the  territory  of  Nevada  to  form  a  constitution,  &c.. 
under  and  by  virtue  of  which  act  the  State  of  Nevada  selected  the 
land,  and  sold  and  conveyed  the  same  to  the  predecessors  in 
interest  of  the  plaintiff,  did  not  constitute  a  grant  in  pnesenti,  but 
an  inchoate,  incomplete  grant  until  the  premises  were  surveyed 
by  the  United  vStates,  and  the  survey  properly  approved. 

Said  survey  and  the  approval  tliereof  not  having  been  made 
prior  to  the  entty  tliereon  and  claim  thereto,  by  defendant's  pre- 
decessors in  interest  for  mining  purposes,  the  same  was  not  by 
said  act  of  Congress,  or  in  any  other  maner,  even  granted  by  the 
United  States  to  the  State  of  Nevada. 

The  entry  of  defendant's  grantors  thereon  for  mining  purposes^ 
and  their  rights  thereto  having  become  established  prior  to  the  sur- 
vey of  said  section  by  the  United  States,  the  said  premises  were 
not  included  within,  and  did  not  pass  to  the  State  of  Nevada,  by 
the  granting  clause  contained  in  said  act  of  Congress  of  March 
21,  1864,  but,  on  the  contrary,  were  excluded  therefrom  by  reason 
of  their  having  been  previously  possessed  and  occupied  by  defen- 
dant's grantors  for  mining  purposes,  in  conformity  with  the  mining 
laws,  rules,  and  customs  of  minors  in  the  locality  where  the  same 
was  situated,  and  in  conformity  with  the  act  of  Congress  ap'proved 
July  26',  1866,  granting  the  right  of  way  to  ditch  and  canal  owners 
over  the  public  lands,  and  for  other  purposes. 

Thereupon  judgment  was  rendered  for  the  defendant.  The 
Supreme  Court  of  Nevada  having  affirmed  it,  the  plaintiff  sued 
out  this  writ  of  error. 

Submitted  on  printed  arguments  by  Mr.  W.  E.  F.  Deal  for  the 
plaintiff  in  error,  and  by  Mr.  C.  E.  DeLong  for  the  defendant  in 
error. 


Heydenfeldt  v.  The  Mining  Company.  479 

Mr.  Justice  Davis  delivered  the  opinion  of  the  eonrt. 

The  validity  of  the  patent  from  the  State  under  which  the  plain- 
tiff claims  title  rests  on  the  assumption  that  sections  16  and  36, 
whether  sun'eyed  or  unsurveyed,  and  whether  containing  minerals 
or  not,  were  granted  to  Nevada  for  the  support  of  common  schools 
by  the  seventh  section  of  the  Enabling  Act,  approved  ^Nlarch  21, 
1864.  (13  Stat.,  32,)  which  is  as  follows  : 

"That  sections  numbered  16  and  3Q  in  every  township,  and 
where  such  sections  have  been  sold  or  otherwise  disposed  of  by 
any  act  of  Congress,  other  lauds  equivalent  thereto,  in  legal  sub- 
divisions of  not  less  than  one-quarter  section,  and  as  continguous 
as  may  be,  shall  be,  and  are  hereby,  granted  to  said  State  for  the 
support  of  common  schools." 

This  assumption  is  not  admitted  by  the  United  States,  who, 
in  conformity  with  the  act  of  Congress  of  July  26.  1866,  (14  Stat., 
251),  issued  to  the  defendant  a  patent  to  the  land  in  controversy, 
bearing  date  March  2,  1874.  Which  is  the  better  title,  is  the 
point  for  decision.  As  it  has  been  the  settled  policy  of  the  gov- 
ernment to  promote  the  development  of  the  mining  resources  of 
the  countr}^  and  as  mining  is  the  chief  industry  in  Nevada,  the 
question  is  of  great  interest  to  her  people. 

It  is  true  that  there  are  words  of  present  grant  in  this  law  ;  but, 
in  construing  it,  we  are  not  to  look  at  any  single  phrase  in  it,  but 
to  its  whole  scope,  in  order  to  arrive  at  the  intention  of  the  makers  of 
it.  "  It  is  better  alwaj-s,"  says  Judge  Sharswood,  "  to  adhere  to  a 
plain  common-sense  interpretation  of  the  words  of  a  statute,  than 
to  applj'  to  them  refined  and  technical  rules  of  grammatical  con- 
struction."    (Gyger's  Estate,  65  Penn.  St.,  312.) 

If  a  literal  interpretation  of  any  part  of  it  would  operate  unjustly, 
or  lead  to  absurd  results,  or  be  contrary  to  the  evident  meaning  of 
the  act  taken  as  a  whole,  it  should  be  rejected.  There  is  no  better 
way  of  discovering  its  true  meaning,  when  expressions  in  it  are 
rendered  ambiguous  by  their  connection  with  other  clauses,  than 
by  considering  the  necessity  for  it.  and  the  causes  which  enduced 
its  enactment.  With  these  rules  as  our  guide,  it  is  not  difficult, 
we  think,  to  give  a  true  construction  to  the  law  under  con- 
sideration. 

Congress,  at  the  time,  was  desirous  that  the  people  of  the  Terri- 
tory of  Nevada  should  form  a  State  government  and  come  into 
the  Union.  The  terms  of  admission  were  proposed,  and.  as  was 
customary  in  previous  enabling  acts,  the  particular  sections  of 


480  Heydenfeldt  v.  The  Mining  Company. 

the  public  lands  to  be  donated  to  the  new  vState  for  the  use  of 
common  schools  were  specified.  These  sections  had  not  been 
surveyed,  nor  had  Congress  then  made,  or  authorized  to  be  made, 
any  disposition  of  the  national  domain  within  that  territor}-. 

But  this  condition  of  things  did  not  deter  Congress  from  mak- 
ing the  necessary  provision  to  place,  in  this  respect,  Nevada  on 
an  e(iual  footing  with  States  then  recently  admitted.  Her  people 
were  not  interested  in  getting  the  identical  sections  16  and  36  in 
ever}^  township.  Indeed,  it  could  not  be  known  until  after  a  sur- 
vey where  they  would  fall,  and  a  grant  of  quantity  put  her  in  as 
good  a  condition  as  the  other  States,  which  had  received  the 
benefit  of  this  bounty.  A  grant  operating  at  once,  and  attaching 
prior  to  the  surveys  by  the  United  States,  would  deprive  Congress 
of  the  power  of  disposing  of  any  part  of  the  lands  in  Nevada, 
until  they  were  segregated  from  those  granted.  In  the  mean- 
time further  improvements  would  be  arrested,  and  the  persons, 
who  prior  to  the  surveys  had  occupied  and  improved  the  countrj'-, 
would  lose  their  possessions  and  labor  in  case  it  turned  out  that 
the}^  had  settled  upon  the  specified  sections.  Congress  was  fully 
advised  of  the  condition  of  Nevada,  of  the  evils  which  such  a 
measure  would  entail  upon  her.  and  of  all  antecedent  legislation 
upon  the  subject  of  the  public  lands  within  her  bounds.  In  the 
light  of  this  information,  and  surrounded  by  these  circumstances, 
Congress  made  the  grant  in  question.  It  is  ambiguous  ;  for  its 
different  parts  cannot  be  reconciled,  if  the  words  used  receive 
their  usual  meaning.  Schulenberg  v.  Harrimun.  21  Wall..  44, 
establishes  the  rule  that  "  unless  there  are  other  clauses  in  a  stat- 
ute restraining  the  operation  of  words  of  present  grant,  these 
must  be  taken  in  their  natural  sense."'  We  do  not  seek  to  depart 
from  this  sound  rule  ;  but,  in  this  instance,  words  of  qualification 
restrict  the  operation  of  those  of  present  grant.  Literall}^  con- 
strued, they  refer  to  past  transactions  ;  but  evidently  they  were 
not  employed  in  this  sense,  for  no  lands  in  Nevada  had  been 
sold  or  disposed  of  by  any  act  of  Congress.  There  was  no  occa- 
sion of  making  provision  for  substituted  lands,  if  the  grant  took 
ieflfect  absolutely  on  the  admission  of  the  State  into  the  Union, 
and  the  title  to  the  lands  then  vested  in  the  State.  Congress 
cannot  be  supposed  to  have  intended  a  vain  thing,  and  yet  it  is 
quite  certain  that  the  language  of  the  qualification  was  intended 
to  protect  the  State  against  a  loss  that  might  happen  through  the 
action  of  Congress  in  selling  or  disposing  of  the  public  domain. 


Hbydenfkldt  v.  The  Mining  Company.  481 

It  could  not.  ns  we  have  seen,  apply  to  past  sales  or  dispositions, 
and.  to  have  any  effect  at  all,  must  be  held  to  apply  to  the  future. 

This  interpretation,  althonijh  seemingly  contrary  to  the  letter 
of  the  statute,  is  reallv  within  its  reas(m  and  spirit.  Jt  accords 
with  a  wise  public  policy,  gives  to  Nevada  all  she  could  reasonably 
ask,  and  acquits  Congress  of  passing  a  law  which  in  its  effects 
would  be  unjust  to  the  people  of  the  territor3\  Besides,  no  other 
construction  is  consistent  with  the  statute  as  a  whole,  and  answers 
the  evident  intention  of  its  makers  to  grant  to  the  State  in  pr(p,s€nti 
a  quantity  of  lands  equal  in  amount  to  the  16th  and  36th  sections 
in  each  township.  Until  the  staffs  of  the  lands  was  fixed  by  a 
survey,  and  they  were  capable  of  identification.  Congress  reserved 
absolute  power  over  them,  and,  if  in  exercising  it  the  whole  or 
any  part  of  a  16th  or  86th  section  had  been  disposed  of.  the  State 
was  to  be  compensated  l)y  other  lands  equal  in  quantity  and  as 
near  as  may  be  in  quality.  By  this  means  the  State  was  fully 
indemnified,  the  settlers  ran  no  I'isk  of  losing  the  labor  of  years, 
and  Congress  was  left  free  to  legislate  touching  the  national 
domain  in  any  way  it  saw  fit  to  promote  the  public  interests. 

It  is  argued  that,  conceding  the  soundness  of  this  construction, 
the  defence  cannot  be  sustained,  because  the  land  in  contro\  ers}' 
was  not  actually  sold  by  direction  of  Congress  until  after  the 
survey.  This  position  ignores  a  familiar  rule  in  the  construction 
of  statutes,  that  they  must  be  so  construed  as  to  admit  all  parts 
of  them  to  stand  if  possible.  (1  Bouv.  Inst.,  p.  42.  sect.  7.)  The 
language  used  is,  "  sold  or  otherwise  disposed  of  b}^  am--  act  of  Con- 
gress." The  point  made  by  the  plaintift'  would  reject  a  part  of 
these  words  and  defeat  one  of  the  main  purposes  in  view.  Con- 
gress knew,  as  did  the  whole  country,  that  Nevada  was  possessed 
of  great  mineral  wealth,  and  that  lands  containing  it  should  be 
disposed  of  ditferently  from  those  fit  only  for  agriculture.  No 
method  for  doing  this  had  then  been  i)rovided  :  but  Congress  said 
to  the  people  of  the  territory,  "'  You  shall,  if  you  decide  to  come  into 
the  Union,  have  for  the  use  of  schools  sections  numbered  16  and 
36  in  every  townshi]),  if  on  surve}'  no  one  else  has  any  valid  claim 
to  them ;  but  until  this  decision  is  made,  and  the  lands  are  sur- 
ve_yed.  we  reserve  the  right  either  to  sell  them  or  dispose  of  them 
in  any  other  way  that  commends  itself  to  our  judgment.  If  thej^ 
are  sold  or  disposed  of  you  shall  have  other  lands  equivalent 
thereto.*"  The  right  so  reserved  is  subject  to  no  limitation,  and 
the  wisdom  of  not  surrendering  it  is  apparent.    The  whole  country 

31 


482  Beecher  v.  Wetherby. 

is  interested  in  the  development  of  our  mineral  resources,  and  to 
secure  it  adequate  protection  was  required  for  those  enoaged  in 
it.  The  act  of  Congress  of  July  26,  1866,  supra,  passed  before 
the  land  in  controversy  was  surveyed,  furnishes  this  protection 
by  disposing  of  the  mineral  lands  of  the  United  States  to  actual 
occupants  and  claimants,  and  prDviding  a  method  for  the  acquisi- 
tion of  title.  The  defendant  and  those  under  whom  it  claims 
occupied  the  land  prior  to  the  survey,  and  were  entitled  to  pur- 
chase. The  patent  subsequently  obtained  from  the  United  States 
relates  back  to  the  time  of  the  original  location  and  entry,  and 
perfects  their  right  to  the  exclusion  of  all  adverse  intervening 
claims. 

These  views  dispose  of  this  case  :  but  there  is  another  ground 
equally  conclusive.  Congress,  on  the  4th  of  July,  1866  (14  Stat., 
85),  by  an  act  concerning  lands  granted  to  the  State  of  Nevada, 
among  other  things,  reserved  from  sale  all  mineral  lands  in  the 
State,  and  authorized  the  lines  of  surveys  to  be  changed  from 
rectangular,  so  as  to  exclude  them.  This  was  doubtless  intended 
as  a  construction  of  the  grant  under  consideration ;  but  whether 
it  be  correct  or  not,  and  whatever  may  be  the  effect  of  the  grant 
in  its  original  shape,  it  was  clearlj^  competent  for  the  grantee  to 
accept  it  in  its  modified  form,  and  agree  to  the  construction  put 
upon  it  by  the  grantor.  The  State,  by  its  legislative  act  of  Feb. 
13,  1867,  ratified  that  construction,  and  accepted  the  grant  with 
the  conditions  annexed. 

We  agree  with  the  Supreme  Court  of  Nevada,  that  this  accept- 
ance "  was  a  recognition  by  the  legislature  of  the  State  of  the 
validity  of  the  claim  made  by  the  government  of  the  United 
States  to  the  mineral  lands." 

It  is  objected  that  the  constitution  of  Nevada  inhibited  such 
legislation  ;  but  the  Supreme  Court  of  the  State,  in  the  case  we 
are  reviewing,  held  that  it  did  not  (10  Nev.,  314) ;  and  we  think 
their  reasoning  on  this  subject  is  conclusive. 

Judgment  affirmed. 


Beecher  v.  Wetherby. 

October  Term,  l;s77.— 5  Otto,  517. 

It  was  an  unalterable  condition  of  the  admission  of  Wisconsin  into  the 
Union,  that,  of  the  public  lauds  in  the  State,  section  16  in  every 
township,  which  had  not  been  sold  or  otherwise  disposed  of,  should 
be  granted  to  her  for  the  use  of  schools. 


Beecher  v.  Wetherby.  483 

2.  Whether  the  compact  Avith  tlie  State  constituted  only  a  pledge  of  a 

grant  in  fnturo^  or  operated  to  transfer  to  her  the  sections  as  soon  as 
they  could  be  identified  by  the  public  surveys,  the  lands  embraced 
within  them  were  set  apart  from  the  public  domain,  and  could  not 
be  subsequently  diverted  from  their  ajipropriation  to  tiie  State.  If 
any  further  assurance  of  title  was  required,  the  United  States  was 
bound  to  provide  for  tlie  execution  of  proper  instruments  transfer- 
ring to  the  State  the  naked  fee,  or  to  adopt  such  other  legislation  as 
would  secure  that  result. 

3.  riie  right  of  the  Menomonee  Indians  to  their  lands  in  Wisconsin  was 

only  that  of  occupancy;  and,  subject  to  that  right,  the  State  was 
entitled  to  every  section  16  witliin  the  limits  of  tlmse  lands. 

4.  The  act  of  Congress  approved  Februai-y '>,  !H71,  (Hi  Stat.,  4()4),  author- 

izing a  sale  of  the  townships  set  apart  for  the  use  of  the  Stoekbridge 
and  Munsee  Indians,  and  originally  forming  a  part  of  the  lands  of 
tlie  Menomonees,  does  not  apply  to  sections  Ki. 


Erkor  to  the  Circuit  Court  of  the  United  States  for  the  Eastern 
District  of  Wisconsin. 

This  was  replevin  by  Beeeher  to  recover  from  Wetherb}^  James, 
and  Stille,  saw-logs,  cut  and  taken  by  them  during  the  winter  of 
1872  and  1873,  from  section  16,  township  28,  range  14  east,  in 
Wisconsin.  The  plaintiff  asserts  title  to  the  land  under  patents 
from  the  United  States  bearing  date  October  10,  1872  ;  and  the 
defendants,  under  patents  from  that  State  of  December  15,  1865, 
and  September  26,  1870. 

Under  the  eighth  article  of  the  treaty  of  August  19,  1825  (7 
Stat.,  272),  the  Menomonee  lands  were  declared  to  be  "bounded 
on  the  north  by  the  Chippewa  country,  on  the  east  by  Green 
Ba}^  and  Lake  Michigan,  extending  as  far  south  as  Milwaukee 
river,  and  on  the  west  they  claim  to  Black  river."  The  lands  in 
question  are  embraced  in  this  tract. 

A  treaty  concluded  with  the  Menomonees  Februar}'  8,  1831  (7 
Stat.,  342),  confirming  those  boundaries,  was  ratified  by  the  Senate, 
with  a  proviso  that  two  townships  on  the  east  side  of  Winnebago 
Lake  should  be  ceded  for  the  use  of  the  Stoekbridge  and  ]Munsee 
Indians. 

By  a  treaty  concluded  October  18,  1848,  and  ratified  January 
23,  1849  (9  Stat.,  952),  the  Menomonees  agreed  to  cede  to  the 
United  States  all  their  lands  in  Wisconsin.  The  eighth  article 
stipulated  that  they  should  be  permitted  to  remain  on  the  ceded 
lands  for  the  period  of  two  years,  and  until  the  President  should 
notify  them  that  the  same  were  wanted. 


484  Beecher  v.  Wetherby. 

The  act  to  enable  the  people  of  Wisconsin  Territory  to  form  a 
constitution  and  State  government,  and  for  the  admission  of  such 
State  into  the  Union,  approved  August  6,  1846  (9  Stat.,  56),  pro- 
vides "that  section  numbered  16  in  every  township  of  the  public 
lands  in  said  State,  and,  when  such  section  has  been  sold  or 
otherwise  disposed  of,  other  lands  equivalent  thereto,  and  as  con- 
tiguous as  may  l)e.  shall  be  granted  t(j  said  State  for  the  use  of 
schools." 

The  convention  called  to  form  a  constitution,  on  the  first  day 
of  Februarv.  1849,  accepted  the  proposition  contained  in  the 
organic  act.  (Rev.  Stat.  Wis.,  1849.  p.  4.5.)  By  an  act  entitled 
"  An  act  for  the  admission  of  the  State  of  Wisconsin  into  the 
Union,"  approved  May  29,  1848  (9  Stat.,  233).  such  accei)tance 
was  assented  to  by  Congress. 

A  joint  resolution  or  the  legislature  of  Wisconsin,  approved 
February  1.  18.53  (Gen.  Laws  of  Wis.,  1853.  p.  110),  gives  the 
assent  of  that  State  "to  the  Menomonee  nation  of  Indians  to 
remain  on  the  tract  of  land  set  apart  for  them  by  the  President 
of  the  United  States,  on  the  Wolf  and  Oconto  rivers,  and  upon 
which  they  now  reside,  the  same  being  within  the  State  of  Wis- 
consin aforesaid,  and  described  as  follows,  to  wit :  Commencing 
at.  the  southeast  corner  of  town  28  north,  range  19.  running  thence 
west  thirty  miles,  thence  north  eighteen  miles,  thence  east  thirty 
miles,  thence  south  eighteen  miles  to  the  place  of  beginning." 

On  the  12tli  of  May,  1854  (10  Stat.,  1064).  a  treaty  was  made 
with  the  Menomonees,  "supplementary  and  amendatory"  to  that 
ratified  January  23.  1849.  wherein  it  is  recited  that,  "upon  mani- 
festation of  great  unwillingness  on  the  part  of  said  Indians  to 
remove  to  the  country  west  of  the  ^Mississippi  river,  &c.,  which 
had  been  assigned  to  them,  and  a  desire  to  remain  in  the  State  of 
Wisconsin,  the  President  consented  to  their  locating  temporarily 
upon  the  Wolf  and  Oconto  rivers  :'"  and,  "  to  render  practicable 
the  stipulated  payments  therein  recited,  and  to  make  exchange  of 
the  lands  given  west  of  the  Mississippi  for  those  desired  by  the 
tribe,  and  for  the  purpose  of  giving  them  the  same  for  a  perma- 
nent home,  these  articles  are  entered  into." 

By  the  second  article  of  said  treaty,  the  following-described 
tract  lying  on  Wolf  river  in  the  State  of  Wisconsin  was  ceded  to 
the  Indians  to  l)e  held  as  Indian  lands  are  held  :  "Commencing 
at  the  southeast  corner  of  township  28  north,  range  16  east,  4th 
principal  meridiau.  running  west  twenty-four  miles,  thence  north 


Beecher  v.  Wetherby.  48  5 

eiijliteeu  miles,  thence  east  twenty-four  miles,  thence  south  eiojhteen 
miles  to  the  place  of  be^^inniug,  the  same  being  townships  28,  29, 
and  30  of  ranges  13,  14,  15,  and  16,  according  to  public  survey." 

Under  an  act  of  Congress  approved  February  6,  1871  (16  Stat., 
404).  entitled  "  Au  act  for  the  relief  of  the  Stockbridge  and  Muusee 
tribe  of  Indians  in  the  State  of  Wisconsin,"  the  two  townships  set 
apart  for  their  use,  including  the  section  upon  which  the  logs  were 
cut,  and  forming  a  part  of  the  Menomonee  lands,  were  sold  by 
the  United  States,  and  the  plaintiff  deraigns  title  under  its 
patents. 

The  exterior  lines  of  the  township  in  which  the  land  in  question 
is  situate  were  run  in  October,  1852,  and  the  section  lines  in  INIay 
and  June.  1854. 

There  was  a  judgment  for  the  defendants.  The  plaintiff  then 
brought  the  ease  here. 

Mr.  Charles  W.  FeJker  for  the  plaintiff  in  error. 

The  act  was  in  the  nature  of  an  executory  agreement,  and  by 
its  terms  no  title  to  sections  numbered  sixteen  could  vest  in  the 
State  until  they  were  surve^^ed  and  designated  on  the  plats  filed 
in  the  surv-eyor  general's  office.  The  sectional  or  subdividing 
lines  of  the  township  in  question  were  not  run  prior  to  the  treaty 
of  May  12,  1854. 

The  proviso  to  the  act  implies  a  reserved  power  in  the  govern- 
ment to  sell  or  dispose  of  sections  16  while  tliey  remained  a  part 
of  the  public  domain,  and  that  treaty  did  not  reserve  an}^  section, 
but  appropriated  the  entire  tract  as  a  reservation,  and  vested  the 
title  thereto  in  the  Indians.  [Meade-  v.  United  States,  2  Ct.  of  CI., 
224  ;    United  States  v.  Brooks.  10  How.,  442.) 

The  State  took  title  to  none  ))nt  public  laud.  Land  like  that 
in  question,  continuously  and  rightfully  in  the  occupation  of  an 
Indian  tribe  under  authority  of  tlie  government,  is  not  "public" 
within  the  meaning  of  the  grant.  Mr.  Justice  Davis,  in  Neivhall 
V.  Sanger,  92  U.  S.,  761,  justly  remarked,  that  the  words  "public 
land"  "are  habitually  used  in  our  legislation  to  describe  such  as 
are  subject  to  sale  or  other  disposal  under  general  laws."  The 
treaty  ratified  Januar}^  23,  1849,  allowed  the  Indians  to  remain 
upon  the  lands  for  two  years,  and  until  the  President  should  give 
notice  that  the}'  were  wanted.  Ilis  subsequent  act  setting  them 
apart  as  a  reservation  was  a  specific  appropriation  of  them. 

Not  having  then  been  surveyed,  no  right  of  the  State  to  sections 


486  Beecher  v.  Wetherby. 

16  within  the  reservation  vested,  and  they  have  never  since 
become  "  public  lands."  ( Wilcox  v.  Jackson,  13  Pet.,  498  ;  Cooper 
v.  Eoberfs,  18  Howard,  173  ;  Leavemvorth,  <$-c.,  Railroad  Company 
V.  United  States,  92  U.  S.,  733  ;  Spauldivg  et  al.  v.  Martin,  11 
Wis.,  262.) 

The  cession  to  the  United  States  of  two  townships  in  the  reser- 
vation does  not  affect  the  principle  contended  for ;  they  were  in 
fact  ceded  for  a  reservation  for  the  Stockbridge  and  Munsee  In- 
dians, and  did  not  become  a  part  of  the  public  lands.  Neither  is 
it  material  that  they  were  by  the  act  of  February  6,  1871,  directed 
to  be  sold  for  the  benefit  of  those  Indians.  The  relation  of  the 
United  States  to  the  property  is  the  same.  (16  Stat.,  404  ;  Leaven- 
worth, 6f'C.,  Railroad  Co.  v.  United  States,  supra.) 

Cooper  V.  Roberts,  18  How.,  173,  is  not  in  conflict  with  these 
views.  There  the  lands  had  not  been  legally  appropriated  by  the 
government  before  the  title  of  the  State  vested. 

The  position  that  the  title  did  not  vest  in  the  State  until  the 
lands  were  surveyed  and  the  townships  subdivided  is  not  affected 
by  the  fact  that  the  subdivision  was  made  in  June,  1854,  before 
the  treaty  of  May  12  was  ratified  b}'^  the  Senate  August  2  of  that 
year.  The  rights  of  no  innocent  third  parties  intervening,  the 
treaty  took  effect  by  relation  from  the  day  of  its  date.  {United 
States  V.  Arredondo,  6  Pet.,  691.) 

It  cannot  be  claimed  that  the  defendants  are  innocent  pur- 
chasers. The  patents  under  which  they  claim  were  issued,  the 
one  over  eleven  and  the  other  over  sixteen  years  after  that  treaty 
was  made,  and  they  bought  with  knowledge  of  it. 

If  it  should  be  held,  however,  that  the  surve}^  was  made  before 
that  treaty  was  concluded,  the  eighth  article  of  the  treaty  of  Octo- 
ber 18,  1848,  and  the  acts  of  the  President  subsequent  thereto, 
were  a  legal  impediment  to  the  vesting  of  any  title  in  the  State. 

But  if  the  State  ever  had  any  interest,  contingent  or  otherwise, 
in  section  16  in  each  township  of  this  Indian  reservation,  such 
interest  was  waived  by  the  resolution  of  the  legislature  of  February 
1,  1853.  An  estoppel  is  available  against  the  State.  (Bigelow 
Estoppel,  27G,  277,  and  cases  cited.) 

Mr.  W.  P.  Lynde  and  Mr.  Charles  Barber  contra. 

The  act  of  Congress  of  August  6,  1846,  did  not  constitute  a 
present  grant,  but  was  in  the  nature  of  an  executory  agreement. 
{Rutherford  v.  Greene's  Heirs,  2  Wheat.,  196  ;    Cooper  v.  Roberts, 


Bkechek  v.  Wethbrby.  487 

18  How.,  173;  Schulenberg  v.  Harrimun,  21  Wall.,  44;  Learav- 
vjorfh,  <$-c.,  Railroad  Co.  v.  United  States,  92  U.  S.,  733  ;  Sherman 
V.  Buiclc,  93  /(/.,  209  ;  Heydenfeldt  v.  Daney  Gold  and  Silver  Mining 
Co.,  Id.,  634  ;  8  Opiii.  Atf  y  Gen.,  260  ;  Houghton  v.  Higgins,  25 
Cal..  255.) 

At  the  time  of  the  survey  in  October,  1852,  and  the  subdivision 
in  May  and  June.  1854,  no  lesjal  impediment  existed  to  the  com- 
plete investiture  of  the  title  of  the  State.  {Heydeafeldt  v.  Daney 
Gold  and  Silver  Mining  Co.,  supra.) 

The  fee  to  the  land  was  in  the  United  States,  subject,  in  respect 
to  a  part,  to  the  right  of  occupancy  by  the  Menomonees.  when 
Congress  passed  the  enabling  act  of  1846.  It  was  the  obvious 
intention  that  the  grant  should  be  executed  from  time  to  time 
as  that  right  was  extinguished,  and  the  surveys  designated  tie 
sections. 

From  the  origin  of  the  government  it  had  been  settled  that  the 
United  States  might  make  a  valid  grant  of  lands  to  which  the 
Indian  right  had  not  been  extinguished,  and  that  such  a  grant 
passed  the  title  subject  to  that  right.  {Fletcher  y.  Peck,  6  Crancli, 
87  ;  Clark  v.  Smith,  \S  Pet.,  195  ;  The  Cherokee  Nations.  Georgia. 
5  Pet..  1  ;  Johnson  v.  Mcintosh.  8  Wheat.,  543  :  8  Opin.  Att'y  Gen., 
262  ;    Veeder  et  al.  v.  Guppy,  3  Wis.,  502.) 

The  argument  of  the  plaintiff  that  the  joint  resolution  of  1853 
operated  as  a  grant  of  the  sixteenth  section  is  based  upon  the 
assumed  fact  that  the  title  was  then  in  the  State.  Even  if  this 
were  correct,  the  joint  resolution  is  for  the  following,  among  other 
reasons,  unconstitutional  and  void  :  First,  because  in  Wisconsin 
such  a  resolution  is  simply  an  expression  of  opinion,  bindina;  on 
no  one,  and  without  the  force  of  law.  (Const,  of  AVis.,  art.  4,  sect. 
1  :  Cooley  Const.  Lim..  130,  131.)  Second,  because  it  does  not 
contain  the  enacting  clause  required  by  the  constitution  of  the 
State,  and  is  not  a  bill.  (Const,  of  Wis.,  art.  4,  sect.  17;  Eev. 
Stat.  Wis.,  1858,  p.  30.) 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

This  was  an  action  of  replevin  brought  b}^  the  plaintiff  to 
recover  two  million  feet  of  pine  saw-logs  of  the  estimated  value 
of  $25,000,  alleged  to  be  his  property,  and  to  have  been  wronsj- 
fully  detained  from  him  by  the  defendants.  The  complaint  was 
in  the  usual  form  in  such  cases,  and  the  answer  consisted  of  a 
general  denial  of  its   averments.     The  logs  were  cut  bv  the  de- 


488  BEiiCHER  V.  Wetherby. 

fendants  from  the  tract  of  land  in  AYisconsin  which  constitutes 
section  sixteen  (16),  in  township  twenty-eight  (28).  range  fourteen 
(14),  in  the  countj'  of  Shawano,  in  that  State.  The  plaintiff  claimed 
to  be  the  owner  of  the  logs  by  virtue  of  sundry  patents  of  the 
land  from  which  they  were  cut  issued  to  him  by  the  United  States 
in  October,  1872.  The  defendants  asserted  propert}^  in  the  logs 
under  patents  of  the  land  issued  to  them  by  the  State  of  Wis- 
consin in  1870.  The  question  for  determination,  therefore,  is 
which  of  these  two  classes  of  patents,  those  of  the  United  States 
or  those  of  the  State,  transferred  the  title.  The  logs  were  cut 
in  the  winter  of  1872  and  1873  ;  they  were,  therefore,  standing 
timber  on  the  land  when  all  the  patents  were  issued,  and  as  such 
constituted  a  portion  of  the  realty.  Although  when  severed  from 
the  soil  the  timber  became  personalty,  the  title  to  it  remained 
unaffected.  The  owner  of  the  land  could  equally,  as  before,  claim 
its  possession,  and  pursue  it  wherever  it  was  carried. 

The  State  asserted  title  to  the  land  under  the  compact  upon 
which  she  was  admitted  into  the  Union.  The  act  of  Congress  of 
Angust  6,  1846,  authorizing  the  people  of  the  Territory  of  Wis- 
consin to  organize  a  State  government,  contained  various  propo- 
sitions respecting  grants  of  land  to  the  new  State,  to  be  submitted 
for  acceptance  or  rejection  to  the  convention  which  was  to  assemble 
for  the  purpose  of  framing  its  constitution.  Some  of  the  pro- 
posed grants  were  to  be  for  the  use  of  schools,  some  for  the  estab- 
lishment and  support  of  a  university,  some  for  the  erection  of 
public  buildings,  and  some  were  to  be  of  lands  cpntaining  salt 
springs.  They  were  promised  on  condition  that  the  convention 
should  provide  by  a  clause  in  the  constitution,  or  by  an  ordinance 
irrevocable  without  the.  consent  of  the  United  States,  that  the 
State  would  never  interfere  with  the  primary  disposal  of  the  soil 
within  it  by  the  United  States,  nor  with  any  regulations  Congress 
might  find  necessary  for  securing  the  title  in  such  soil  to  bona  Jide 
purchasers  :  that  no  tax  should  be  imposed  on  lands  the  property 
of  the  United  States,  and  that  in  no  case  should  non-resident  pro- 
prietors be  taxed  higher  than  residents.  And  the  act  provided 
that  if  the  propositions  were  accepted  by  the  convention  and 
ratified  l)y  an  article  in  the  constitution,  they  should  be  obligatory 
on  the  United  States.  The  first  of  these  propositions  was  :  "  That 
section  numbered  sixteen  (16)  in  every  township  of  the  public 
lands  in  said  State,  and  where  such  section  has  been  sold  or  other- 
wise disposed  of.  other  lands  equivalei^thereto.  and  as  contiguous 


Beechek  v.  Wethekby.  489 

as  may  be.  shall  be  granted  to  said  State  for  the  use  of  schools." 
The  convention  which  subsequently  assembled  accepted  the 
propositions,  and  ratified  them  by  an  article  in  the  constitution, 
embodying  therein  the  provisions  required  by  the  act  of  Congress 
as  a  condition  of  the  grants.  With  that  constitution  the  State  was 
admitted  into  the  Union  in  May,  1848.  (9  Stat..  233.)  It  was, 
therefore,  an  unalterable  condition  of  the  admission,  obligatory 
upon  the  United  States,  that  section  sixteen  (16)  in  every  town- 
ship of  the  public  lands  in  the  State,  which  had  not  been  sold  or 
otherwise  disposed  of,  should  lie  granted  to  tlie  State  for  the  use  of 
schools.  It  matters  not  whether  the  words  of  the  compact  be  con- 
sidered as  merely  promissory  on  the  part  of  the  United  States,  and 
constituting  only  a  pledge  of  a  grant  in  future,  or  as  operating  to 
transfer  the  title  to  the  State  upon  her  acceptance  of  the  propo- 
sitions as  soon  as  the  sections  could  be  afterward  identified  by 
the  public  survey.  In  either  case,  the  lands  which  might  be 
embraced  within  those  sections  were  appropriated  to  the  State. 
They  were  withdrawn  from  any  other  disposition,  and  set  apart 
from  the  public  domain,  so  that  no  subsequent  law  authorizing  a 
sale  of  it  could  be  construed  to  embrace  them,  although  they  were 
not  specially  excepted.  All  that  afterwards  remained  for  the 
United  States  to  do  with  respect  to  them,  and  all  that  could  be 
legally  done  under  the  compact,  was  to  identifj^  the  sections  by 
appropriate  survej^s  ;  or.  if  any  further  assurance  of  title  was 
required,  to  provide  for  the  execution  of  proper  instruments  to 
transfer  the  naked  fee,  or  to  adopt  such  further  legislation  as  would 
accomplish  that  result.  They  could  not  be  diverted  from  their 
appropriation  to  the  State. 

In  Cooper  Y.  Roberts,  18  How.,  173,  this  court  gave  construction 
to  a  similar  clause  in  the  compact  upon  which  the  State  of  ^lichi- 
gan  was  admitted  into  the  Union,  and  held,  after  full  consideration, 
that  by  it  the  State  acquired  such  an  interest  in  every  section  16 
that  lier  title  became  perfect  so  soon  as  the  section  in  any  town- 
ship was  designated  by  the  survey.  "We  agree"  said  the  court, 
"that,  until  the  survey  of  the  township  and  the  designation  of  the 
specific  section,  the  right  of  the  State  rests  in  compact — l)inding, 
it  is  true,  the  public  faith,  and  dependent  for  execution  upon  the 
political  authorities.  Courts  of  justice  have  no  authority  to 
mark  out  and  define  the  land  which  shall  be  subject  to  the  grant. 
But,  when  the  political  authorities  have  performed  this  duty,  the 
compact  has  an  object  upon  which  it  can  attach,  and  if  there  is  no 


490  y  Beecher  v.  Wetherby 

legal  impediment,  the  title  of  the  State  becomes  a  legal  title. 
The  jvs  (id  reiu,  by  the  performance  of  that  executive  act,  becomes 
a  jvs  in  re.  judicial  in  its  nature,  and  under  the  cognizance  and 
protection  of  the  judicial  authorities,  as  well  as  the  others."  In 
this  case,  the  township  embracing  the  land  in  question  was  sur- 
veyed in  October,  1852,  and  was  subdivided  into  sections  in  May 
and  June.  1854.  With  this  identification  of  the  section  the  title 
of  the  State,  upon  the  authority  cited,  became  complete,  unless 
there  had  been  a  sale  or  other  disposition  of  the  property  by  the 
United  States  previous  to  the  compact  with  the  State.  No  subse- 
quent sale  or  other  disposition,  as  already  stated,  could  defeat  the 
appropriation.  The  plaintiff  contends  that  there  had  lieen  a  prior 
reservation  of  the  land  to  the  use  of  the  Menomonee  tribe  of 
Indians. 

It  is  true  that,  for  many  years  before  Wisconsin  became  a  State, 
that  tribe  occupied  various  portions  of  her  territory,  and  roamed 
over  nearly  the  whole  of  it.  In  1825,  the  United  States  undertook 
to  settle  by  ti-eaty  the  boundaries  of  lands  claimed  by  different  tribes 
of  Indians,  as  between  themselves,  and  agreed  to  recognize  the 
boundaries  thus  established,  the  tribes  acknowledging  the  general 
controlling  power  of  the  United  States,  and  disclaiming  all  depen- 
dence upon  and  connection  with  any  other  power. 

The  land  thus  recognized  as  belonging  to  the  Menomonee  tribe 
embraced  the  section  in  controversy  in  this  case.  Subsequently, 
in  1831.  the  same  boundai'ies  were  again  recognized.  But  the 
right  which  the  Indians  held  was  only  that  of  occupancy.  The 
fee  was  in  the  United  States,  subject  to  that  right,  and  could  be. 
transferred  by  them  whenever  the}'  chose.  The  grantee,  it  is  true, 
would  take  only  the  naked  fee,  and  could  not  disturb  the  occu- 
pancy of  the  Indians  ;  that  occupancy  could  only  be  interfered 
with  or  determined  ])y  the  United  States.  It  is  to  be  presumed 
that  in  this  matter  the  United  States  would  be  governed  by  such 
considerations  of  justice  as  would  control  a  christian  people  in 
their  treatment  of  an  ignorant  and  dependent  race.  Be  that  as  it 
ma3%  the  propriety  or  justice  of  their  action  towards  the  Indians 
with  respect  to  their  lands  is  a  question  of  governmental  policy, 
and  is  not  a  matter  open  to  discussion  in  a  controversy  between 
third  parties,  neither  of  whom  derives  title  from  the  Indians.  The 
right  of  the  United  States  to  dispose  of  the  fee  of  lands  occu- 
pied by  them  has  always  been  recognized  by  this  court  from  the 
foundation  of  the  government.      It  was  so  ruled  in  Johnson  v. 


Beecher  v.  Wetherby.  491 

Mchitosh,  8  Wheat.,  543.  in  1823;  and  in  United  States  v.  Cook, 
19  Wall..  591,  in  1873.  Other  cases  between  those  periods  have 
affirmed  the  same  doctrine.  {Clark  v.  Smith.  13  Fet.,  195.  See 
also  Jackson  v.  Hudson,  3  Johns.  N.  Y.,  375  :  Feeder  at.  al.  v. 
Guppy,  3  Wis,,  502  ;  and  8  Opin.,  AWy  Gen.,  pp.  262-264.)  In 
United  States  v.  Cook,  the  United  States  maintained  replevin  for 
timber  cut  and  sold  by  Indians  on  land  reserved  to  them,  the 
court  observing-  that  the  fee  was  in  the  United  States,  and  only  a 
right  of  occupancy  in  the  Indians  ;  that  this  was  the  title  by  wliich 
other  Indians  held  their  land,  and  that  the  authority  of  Johnson 
V.  Mcintosh  on  this  point  had  never  been  doubted.  But,  added 
the  court,  "the  right  of  the  Indians  to  their  occupancy  is  as  sacred 
as  that  of  the  United  States  to  the  fee,  but  it  is  only  a  riglit  of 
occupancy.  The  possession,  when  abandoned  by  the  Indians, 
attaches  itself  to  the  fee  without  further  grant." 

In  the  construction  of  grants  supposed  to  embrace  land  in  the 
occupation  of  Indians  questions  have  arisen  whether  Congress 
intended  to  transfer  the  fee  or  otherwise  :  but  the  power  of  the 
United  States  to  make  such  transfer  has  in  no  instance  been  denied. 
In  the  present  case  there  can  hardly  be  a  doubt  that  Congress  in- 
tended to  vest  in  the  State  the  fee  to  section  16  in  every  town- 
ship, subject,  it  is  true,  as  in  all  other  cases  of  grants  of  public 
lands,  to  the  existing  occupancy  of  the  Indians  so  long  as  that 
occupancy  should  continue.  The  greater  part  of  the  State  was 
at  the  date  of  the  compact  occupied  by  different  tribes,  and  the 
grant  of  sections  in  other  portions  would  have  been  comparativelj' 
of  little  value.  Congress  undoubtedly  expected  that  at  no  distant 
da}^  the  State  would  be  settled  by  white  people,  and  the  semi- 
barbarous  condition  of  the  Indian  tribes  would  give  place  to  the 
higher  civilization  of  our  race  ;  and  it  contemplated  by  its  bene- 
factions to  carry  out  in  that  State,  as  in  other  States,  •'  its  ancient 
and  honored  policy"  of  devoting  the  central  section  in  every  town- 
ship for  the  education  of  the  people.  Accordingly,  soon  after  the 
admission  of  the  State  into  the  Union,  means  were  taken  for  the 
extinguishment  of  the  Indian  title.  In  less  than  eight  months 
afterwards  the  principal  tribe,  the  Menomonees.  by  treaty  ceded 
to  the  United  States  all  their  lands  in  Wisconsin,  though  per- 
mitted to  remain  on  tliem  for  tlie  {)eri(jd  of  two  )'ears.  and  until 
the  President  should  give  notice  that  thej"  were  wanted.  (9  Stat., 
952.) 

It  is  true  that  subsequently  the  Indians,  being  unwilling  to 


492  Beecher  i\  Wetherby. 

leave  the  State,  the  President  permitted  their  temporary  occupa- 
tion of  lands  upon  Wolf  and  Oconto  rivers,  and  in  1853  the  State 
gave  its  assent  to  the  occupation  ;  and  in  May,  1854,  the  United 
States  by  treaty  ceded  to  them  certain  lands  for  a  permanent 
home,  the  treaty  talking  effect  upon  its  ratification  in  August  of 
that  year  ;  and  afterwards  a  portion  of  these  lands  was  by  another 
treaty  ceded  to  the  Stockbridge  and  Munsee  tribes.  But  when  the 
logs  in  suit  were  cut  those  tribes  had  removed  from  the  land  in 
controversy,  and  other  sections  had  been  set  apart  for  their  occu- 
pation. 

The  act  of  Congress  of  February  6.  1871,  authorizing  a  sale  of 
the  townships  occupied  by  the  Stockbridge  and  Munsee  tribes, 
must,  therefore,  be  held  to  apply  only  to  those  portions  which 
were  outside  of  sections  16.  It  will  not  be  supposed  tliat  Con- 
gress intended  to  authorize  a  sale  of  land  which  it  had  previously 
disposed  of.  The  appropriation  of  the  sections  to  the  State,  as 
already  stated,  set  them  apart  from  the  mass  of  public  propert}" 
which  could  be  subjected  to  sale  by  its  direction. 

It  follows  that  the  plaintiff  acquired  no  title  by  his  patents  to 
the  land  in  question,  and,  of  course,  no  property  in  the  timber 
cut  from  it.  Judgwent  affirmed. 

Note.— See  Mii.ier  v.  Shirley,  45  Miss  ,  37G,  and  BaUoa  v.  (fBrleii,  20 
Mich.,  ;^()4. 

The  act  of  Jime  23,  1 836,  admitting-  the  .^tate  into  the  Union,  and 
granting  lands  to  the  State  for  public  schools,  was  an  absolute  grant,  and 
the  act  of  Congress  of  March  3,  1843,  imposing  conditions  upon  the  power 
of  sale  by  the  State  is  not  binding  on  the  State.  Mayerfi  v.  Bipve,  (i  Barb. 
(Ark).  3().s. 

The  act  of  May  30,  1854,. organizing  the  territory,  reserved  sections  16 
and  36  In  each  township  for  school  purpose.*.  This  reservation  operated 
as  a  grant  of  the  lands  to  the  territory,  and  under  the  grant  the  land 
could  be  sold  under  a  law  of  the  territory,  before  the  State  was  admitted 
into  the  Union.  State  v.  Stiiiiqfellow^i  Kan.,  2(i3  ;  Stoutv.  tiijutt.  13  Kan., 
232. 

Lands  were  not  excepted  from  the  grant  because  they  were  covered 
by  a  private  land  claim  which  was  finally  rejected  {Thompson  v.  '/'riw,  48 
Cal.,  GOlj;  or  because  they  contained  minerals.  liiyyiu.s  v.  Huvijlilon^ 
25  Cal.,  25J. 


Water  and  Mininc;  Co.  v.  JBugbey.  493 

Watek  and  MiNiN(i  Company  v.  BrGBEY. 
October  'I'evm,  1877.— c  (Jtto,  10-5. 

1.  'J'lio  act  of  March  ;5,  18.o3  (10  Stat.,  244),  granted  for  school  purposes  to 

California  the  public  lands  within  sections  10  and  3G  in  each  Con- 
aressional  township  in  that  State,  except  so  much  of  them  whereon 
an  actual  settlement  had  been  made  before  the}-  were  surveyed, 
and  the  settlei-  claimed  the  right  of  pre-emption  within  three 
months  after  tlie  return  of  the  plats  of  the  surveys  to  the  local  land 
office. 1  If  he  failed  to  make  good  his  claim,  the  title  to  the  land 
embraced  by  his  settlement  vested  in  the  State  as  oi  tlie  date  of  the 
completion  of  the  sui-veys. 

2,  In  this  case,  the  title  of  the  State  to  the  demanded  premises,  being  part 

of  a  school  section,  having  become  absolute  May  19,  L*:(i(i,  a  mining 
company  could,  under  the  act  of  .lulj^  26,  1866  (14  Stat.,  2^t'4  ,  acquire 
no  right  to  them.  • 

EiiROR  to  the  Supreme  Court  of  the  State  of  California. 
The  facts  are  stated  in  the  opinion  of  the  court. 
Mi-.  Samuel  Shelhiharrier  and  Mr.  J.  M.  Wilson  for  tiie  i)laintiff 
in  error. 

Mr.  Aaron  A.  Sargent  contra. 

Mn.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

This  was  an  action  of  ejectment,  brought  b}'  Bugbey,  the  defend- 
ant in  error,  against  the  Natoma  Water  and  Mining  Company,  the 
plaintiff  in  error,  to  recover  possession  of  a  part  of  the  south  half 
of  section  16,  township  10  north,  of  range  8  east.  Mount  Diablo 
base  and  meridian,  in  the  State  of  California. 

He  claimed  title  by  grant  from  the  State,  and  the  company 
under  the  act  of  Congress  of  March  3,  1853,  "to  provide  for  the 
survey  of  public  lands  in  California,  the  granting  of  pre-emption 
rights  therein,  and  for  other  purposes ''  (10  Stat..  244).  and  the 
act  of  July  29,  1866,  "granting  the  right  of  wa^'  to  ditch  and 
canal  owners  over  tlie  public  lands,  and  for  other  purposes" 
(14  Stat.,  251.) 

The  decision  of  the  Supreme  Court  of  California  liaving  been 
against  the  title  set  up  by  the  company,  this  writ  of  error  was 
brought.  The  facts  affecting  the  federal  question  in  the  case  are 
as  follows  : 

In  1851.  the  company  commenced  the  construction  of  a  canal 
upon  the  unoccupied  and  unsurveyed  public  lands  of  the  United 
States,  for  the  purpose  of  supplying  water  to  miners  and  others. 


494  Water  and  Mining  Co.  v.  Bugbey. 

This  canal  was  completed,  at  large  expense,  in  April,  1853,  and 
the  premises  in  controversy  are  included  within  its  limits. 

By  the  act  of  March  3,  1853,  (10  Stat.,  244),  Congress  provided 
for  the  survey  of  the  public  lands  of  California,  and  granted 
sections  16  and  36  to  the  State,  for  school  purposes.  By  section 
7  of  this  act,  it  was  provided,  "that  where  any  settlement,  by  the 
erection  of  a  dwelling-house,  or  the  cnltivation  of  any  portion  of 
the  land,  shall  be  made  on  the  sixteenth  and  thirty-sixth  sections, 
before  the  same  shall  be  surve3^ed,  *  *  *  *  other  land  shall 
be  selected  by  the  proper  authorities  of  the  State,  in  lieu  thereof, 
agreeably  to  the  provisions  of  the  act  of  Congress  approved  May 
20,1826,     *     *     *"  (4  Stat.,  179.) 

The  survey  of  the  lands  in  controversy  was  completed  May  19, 
1866,  and  the  plats  deposited  in  the  United  States  land  office  for 
the  district  June  16,  1866.  At  that  time,  Bugbey  was  an  actual 
settler  upon  the  legal  subdivision  of  the  section  16  in  which  the 
premises  ai'e  situated,  and  had  thereon  a  dwelling-house,  and 
agricultural  and  other  improvements.  He  made  no  claim  under 
the  pre-emption  laws  of  the  United  States. 

Other  persons  were  also  in  posession  of  other  portions  of  the 
section.  The  act  of  1853  required  (sect.  6)  that,  "where  nnsur- 
veyed  lands  are  claimed  by  pre-emption,  the  usual  notice  of  such 
claim  shall  be  filed  within  three  months  after  the  return  of  the 
plats  of  the  surveys  to  the  land  offices."  On  the  28th  of  September, 
1866,  the  register  of  the  United  States  land  office  certified  to  the 
State  land  office  that  no  claim  had  been  filed  to  this  section  16, 
except  the  pre-emption  of  one  Hancock,  which  was  afterwards 
abandoned. 

Sect.  9  of  the  act  of  July  26,  1866,  (14  Stat,,  253),  is  as  follows  : 

"  That  whenever,  by  priority  of  possession,  rio-hts  to  the  use  of  water 
for  milling,  agricultural,  manufacturing,  or  other  purposes,  have  vested 
and  accrued,  and  the  same  are  recognized  and  acknowledged  by  the 
local  customs,  laws,  and  the  decisions  of  the  courts,  the  possessors  and 
owners  of  such  vested  rights  shall  be  maintained  and  protected  in  the 
same  ;  and  the  riglit  of  way  for  tlie  construction  of  ditches  and  canals, 
for  the  purposes  aforesaid,  is  hereby  acknowledged  and  confirmed.    ^  ^^  " 

The  company  has  brought  itself  within  the  provisions  of  this 
section,  if  at  the  time  of  the  passage  of  the  act  the  United  States 
held  title  to  the  lands. 

On  the  22d  of  April.  1867,  Bngbey  purchased  the  portion  of  the 
section  on  wliich  the  premises  in  controversy  are  situated  from 
the  State  of  California,  and  took  a  patent.     The  company  does 


Water  and  Mining  Co.  v.  Bugbet.  495 

not  in  any  manner  connect  itself  with  tliis  title,  or  with  that  of 
any  other  occupant  of  the  section  previous  to  the  survey. 

In  Sherman  v.  Biiick  (93  U.  S.,  209),  it  was  decided  that  the 
State  of  California  took  no  title  to  sections  16  and  86,  under  the 
act  of  1853.  as  against  an  actual  settler,  before  the  survey,  claim- 
ins;  tlie  benefit  of  the  pre-emption  laws,  who  perfected  his  claim 
bj^  a  patent  from  the  United  States.  In  such  a  case,  the  State 
must  look  for  its  indemnity  to  the  provisions  of  sect.  7  of  the 
act.  As  against  all  the  world,  except  the  pre-emption  settler,- the 
title  of  the  United  vStates  passed  to  the  State  upon  the  completion 
of  the  surveys  ;  and  if  the  settler  failed  to  assert  his  claim,  or  to 
make  it  good,  the  rights  of  the  State  became  absolute.  The 
language  of  the  court  is  (p.  214):  "These  things  [settlement 
and  improvement  under  the  law]  being  found  to  exist  when  the 
survey  ascertained  their  location  on  a  school  section,  the  claim  of 
the  State  to  that  particular  piece  of  land  was  at  an  end ;  and,  it 
being  shown  in  the  proper  mode  to  the  proper  officer  of  the  United 
States,  the  right  of  the  State  to  the  land  was  gone,  and  in  lieu  of 
it,  she  had  acquired  the  right  to  select  other  land,  agreeably-  to 
the  act  of  1826." 

In  til  at  case,  the  controversy  was  between  the  settler,  who  had 
perfected  his  title  from  the  United  States,  and  a  purchaser  from 
the  State. 

Here  the  company  does  not  come  under  the  settler's  title,  but 
seeks,  by  means  of  it.  to  defeat  that  of  the  State,  and  thus  leave 
the  land  in  a  condition  to  be  operated  upon  by  the  act  of  July  26 
The  settler,  however,  was  under  no  obligation  to  assert  his  claim, 
and  he  having  abandoned  it.  the  title  of  the  State  became  abso- 
lute, as  of  May  19,  1866,  when  the  surveys  were  completed. 

The  case  stands,  therefore,  as  if  at  that  date  the  United  States 
had  parted  with  all  interest  in  and  control  over  the  property.  As 
the  act  of  July  26  was  not  passed  till  after  that  time,  it  follows 
that  it  could  not  operate  upon  this  lanH  in  favor  of  the  company 

This  disposes  of  the  only  federal  question  in  the  record. 

^  Judgvient  ajjirnied. 

Note. — i  Held^  same  in  Damrell  v.  Meyer^  40  Cal.,  1(10  ;  Megerlt  v.  Ashe 
47  Cal.,  C32  ;  Athearn  v.  Pnppe,  42  Cal.,  OOd  ;  and  there  it  no  authority  in 
the  land  department  to  dispense  with  this  requirement.  {Mtgale  v. 
Ashe,  33  Cal.,  74.) 


496  Huff  v.  Doyle  et  al. 

HrFF    V.    DOYLK    ET    AL. 
Octolx'i- 'rci-in.  1S7(J  — 3  otto,  o.lS. 

1.  The  act  of  (  oiigress  of  .July  2.'!,  'SfiO  (14  Stat.,  218),  confirming  selec- 

tions theretofore  made  by  r'alifornia  of  any  portions  of  the  public 
domain,  divided  them  into  two  clas^ses,  namely,  one  in  which  they 
had  been  made  from  land  surveyed  by  the  Tnited  States  before  the 
passage  of  the  act.  and  the  other  in  which  the  selected  lands  had 
not  been  so  surveyed 

2.  Whei-e  the  surveys  had   l)een  made  before  the  passage  of  the  act,  it 

was.  by  the  second  section  thereof,  the  duty  of  the  State  authorities 
to  notify  the  local  land  ofticer  of  such  selection,  whei-e  they  had  not 
already  done  so  Such  notice  was  regarded  as  the  date  of  such  selec- 
tion. 
J3.  Where  the  surveys  had  not  yet  been  made,  the  State,  under  the  tliird 
section,  had  the  right  to  treat  her  selection  made  ])efore  the  passage 
of  the  act  as  a  pre-emption  claim,  and  the  holder  of  her  title  was 
allowed  the  same  time  to  prove  his  claim  under  the  act  after  the 
surveys  were  filed  in  the  local  land  office  as  was  allowed  to  pre- 
emptors  under  existing  laws- 

4,  By  a  fair  construction  of  these  provisions  and  others  of  this  statute, 

and  of  the  act  of  ^March  ',\.  1853  (10  ^tat..  244),  the  exception  in  the 
first  section  confirming  these  selections  of  lands  "held  or  claimed 
under  a  valid  Mexican  or  Spanish  grant  "'  must  be  determined  as  of 
the  date  when  tlie  claimant,  under  a  State  selection,  undertakes  to 
prove  up  his  claim  after  the  surveys  liave  been  made  and  filed,  and 
within  the  time  allowed  thereafter  to  pre-emptors. 

5.  If  at  that  date  the  land  selected  by  the  State  was  excluded  from  such 

a  grant,  either  by  judicial  decision  or  by  a  survey  made  by  the  United 
States,  the  claimant  may  have  his  claim  confirmed. 

EitKoi;  to  the  Suin-eme  Court  of  the  State  af  California. 
Submitted  on  printed  arguments  by  Mr.  John  B.  Harmon  for 
the  plaintiff  in  error,  and  Mr.  S.  F.  Liph  contra, 

Mk.  Justice  Millek  deltvered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  Supreme  Court  of  the  State  of 
California,  which  brings  here  for  review  a  judgment  of  that  court 
concerning  a  title  to  land  dependent  on  the  act  of  Congress  grant- 
ing lands  to  that  State  for  school  purposes  of  March  3, 1853,  and 
the  act  of  July  23,  1866,  on  the  same  subject.  (10  Stat..  244  ;  14 
Id.,  218.) 

By  the  sixth  section  of  the  first-mentioned  act,  the  State  was 
granted  every  sixteenth  and  thirty-sixth  section  of  the  public 
land  for  school  purposes,  with  an   exception  of  lands  which  for 


Huff  /•.  Doyle,  497 

various  reasons  oiij);lit  not  to  be  so  granted,  and  by  the  seventh 
section  the  State  was  authorized  to  select  other  lands  in  lieu  of 
any  section  or  part  of  section  sixteen  or  tliirty-six  whicli  fell 
within  any  of  these  exceptions.  The  act  which  made  these  grants 
was  the  first  which  provided  for  the  extension  to  California  of  the 
system  of  surveys,  sales,  and  pre-emption  of  public  lands  so  long 
established  in  other  States  and  territories.  No  surveys  had  then 
been  made,  and  it  was  obvious  that  until  they  were  made,  and  the 
pi-ecise  locality  of  each  township,  and  of  the  sixteentli  and  thirty- 
sixth  sections  of  the  township,  was  thus  ascertained,  it  could  not 
be  known  whether  they  came  within  any  of  the  exceptions  to  the 
grant  or  whether  any  right  of  selection  in  lieu  of  them  had  accrued. 
The  State  of  California,  impatient  of  the  delay  of  the  United 
States  authorities  in  making  these  surveys,  undertook  to  perform 
that  duty  herself,  and  assuming  from  data  furnished  by  her  own 
surveys,  tliat  a  great  many  acres  of  the  sixteenth  and  thirty-sixth 
sections  were  within  one  or  the  other  of  the  exceptions  of  the 
granting  clause,  for  which  the  State  was  to  select  other  lands,  tlie 
legislature  authorized  selections  and  locations  to  be  made  in  lieu 
thereof  according  to  State  surveys.  The  land  in  controvei-sj- 
was  so  selected  bj'^  the  State  and  sold  to  plaintitf.  who  settled  on 
it  in  1865,  and  received  from  the  State  a  certificate  of  sale. 

The  officers  of  the  land  department,  when  the  matter  was 
brought  to  their  attention,  refused  to  recognize  the  surveys  made 
by  the  State,  or  to  acknowledge  the  validity  of  selections  and 
locations  made  under  the  State  laws,  and  as  many  such  selections 
and  actual  settlements  under  them  had  been  made,  the  hardshi]>s 
and  embarrassments  growing  out  of  the  action  of  the  State  gov- 
ernment, caused  the  passage  of  the  act  of  July  23.  1H66. 

By  the  first  section  of  that  act  it  was  declared  "that  in  all  cases 
where  the  State  of  California  has  heretofore  made  selections  of 
any  portion  of  the  public  domain,  in  part  satisfaction  of  any  grant 
made  to  said  State  by  act  of  Congress,  and  lias  disposed  of  the 
same  to  purchasers  in  good  faith  under  her  laws,  the  lands  so 
selected  shall  be,  and  are  hereby,  confirmed  to  said  State.'" 

A  proviso  excepted  out  of  this  confirmation  land  of  various 
classes,  among  which  is  '•  any  land  held  or  claimed  under  a  valid 
Mexican  or  Spanish  grant."  Section  two  of  the  act  required  the 
proper  land  officers,  where  the  land  had  been  surveyed  by  the 
United  vStates  at  the  date  of  the  act.  to  examine  into  these  selec- 
tions, nnd  if  found  to  be  right,  to  certify  them  to  the  State  :    and 

32 


498  Huff  v.  Doyle. 

by  the  third  section  provision  was  made  for  the  i)erfection  of 
these  titles  in  lands  not  yet  surveyed,  after  the  surveys  should 
have  been  extended  over  them. 

The  land  claimed  by  plaintilf  belonged  to  the  latter  class, 
and  the  official  plat  of  the  survey  of  the  township  embracing  it 
was  not  filed  in  the  proper  land  office  of  the  United  vStates  until 
June  28,  1871,  nearly  five  years  after  the  passage  of  the  act,  and 
six  years  after  its  selection  and  location  by  plaintiff.  As  soon  as 
this  was  done,  to  wit,  July  10,  1871,  plaintiff  proved  up  his  claim, 
and  the  land  office  certified  the  land  to  the  State  of  California,  as 
provided  by  the  third  section  of  the  act,  and  the  State  thereupon 
issued  to  him  his  patent.  It  is  upon  this  title  that  plaintiff  recov- 
ered a  judgment  for  the  possession  of  the  land  in  the  inferior 
court  of  the  State  of  California  against  defendants,  whose  claim 
consisted  in  the  facts  found  by  the  court,  that  having  the  qualifi- 
cations of  pre-emptors  of  the  public  land,  they  had,  in  November, 
1870,  intruded  upon  the  possession  of  plaintiff,  had  made  a 
declaration  of  their  intention  to  pre-empt  it,  and  had  offered  to  pay 
the  money  and  demanded  a  certificate  of  sale,  the  land  officers 
refusing  both  to  accept  their  money  and  to  give  them  a  certificate. 
The  Supreme  Court  of  California  reversed  this  judgment,  and 
ordered  a  judgment  for  defendants,  on  the  ground  that  at  the  time 
of  plaintiff's  selection  of  this  land,  and  of  the  passage  of  the  act 
of  1888,  it  was  claimed  under  a  valid  Mexican  grant. 

To  determine  the  correctness  of  this  ruling  it  will  be  necessary 
to  look  into  the  history  of  that  claim. 

It  appears  that  at  some  time  prior  to  1860  there  was  confirmed 
to  Robert  Livermore  a  grant  of  two  leagues  of  land,  called  Los 
Pocitas,  the  outboundaries  of  which  were  given  in  the  decree  of 
confirmation,  and  which  included  the  land  now  in  controversy. 
In  1865  a  survey  of  this  grant  was  made,  which  contained  nine 
leagues,  and  which  was  rejected  for  that  reason  by  the  Commis- 
sioner of  the  General  Land  Office  in  1868.  In  March,  1869, 
another  survey  was  made,  which  contained  two  square  leagues, 
and  did  not  include  the  land  in  suit,  and  this  survey  was  con- 
firmed by  the  commissioner  June  6,  1871.  It  will  be  remembered 
that  on  the  28th  of  the  same  month,  the  plat  of  the  government 
surveys  was  filed  in  the  local  land  office,  and  that  twelve  days 
thereafter  plaintiff  presented  himself  at  that  office  and  proved  up 
his  claim. 

The  question  for  our  decision  under  the  facts  as  found  by  the 


Huff  v.  Doyle.  499 

court  below  and  thus  more  briefly  stated,  is  whether  the  action  of 
the  officers  of  the  land  department  in  certifying  these  lands  to  the 
State  as  a  valid  selection  of  indemnity  lands  under  the  act  of 
1866,  was  without  authorit}^  of  law,  and  tlierefore  void.  Tliere 
can  be  no  doubt  that  they  were  authorized  to  inquire  into  the 
validity  of  any  claim  set  up  under  section  one  of  that  act,  and,  in 
the  language  of  the  closing  paragraph  of  section  three,  "if  found 
in  accordance  with  section  one,"  to  certify  the  land  to  the  State. 
And  it  may  admit  of  grave  doubt  whether  in  a  suit  at  law  the 
validity  of  their  action  can  be  impeached.  It  certainly  cannot  be 
impeached  on  any  other  ground  found  in  this  record  than  that 
being  part  of  a  valid  Mexican  claim,  the  land  was  expressly 
excepted  from  confirmation,  and  could  not  be  subjected  to  it  by 
the  act  of  the  land  officers  in  the  premises. 

It  is  not  to  be  denied  that  the  facts  found  show  that  at  the  date 
of  the  act  of  1866  the  land  claimed  by  defendant  was  part  of  a 
tract  claimed  under  a  Mexican  grant,  and  that  the  grant  itself 
was  then  and  is  still  conceded  to  be  a  valid  grant.  It  was,  there- 
fore, "claimed  under  a  valid  Mexican  grant,"  within  the  literal 
terms  of  the  statute.  And  if  this  litei'al  construction  is  to  prevail, 
and  the  fact  of  its  being  claimed  under  a  Mexican  grant  is  to 
have  reference  solely  to  the  date  of  the  statute,  the  Supreme  Court 
of  California  was  right  in  its  decision. 

But  we  see  no  I'eason.  in  the  nature  of  the  relief  granted  h\  this 
statute,  or  in  the  exception  of  land  covered  by  Mexican  claims, 
which  should  make  the  exception  cover  land  to  which  no  Mexican 
claim  existed  at  the  time  the  land  officers  were  to  decide  on  the 
validity  of  the  selection  of  the  State.  If  there  was  then  no  claim, 
or  if  it  had  been  judicially  determined  that  it  was  not  valid,  the 
remedial  spirit  of  the  statute  required  that  the  bona  fide  purchaser 
from  the  State  should  be  at  liberty  to  assert  his  claim  to  it,  as  a 
selection  made  by  the  State,  and  no  principle  of  public  policy  was 
infringed  by  so  doing. 

That  this  was  the  intention  of  Congress  is  fairW  deducible  from 
other  parts  of  the  statute. 

As  we  have  already''  said,  section  two  has  reference  to  lands 
which  had  been  surveyed  by  the  government  at  the  date  of  its 
passage.  As  to  these  lands  it  is  made  "  the  duty  of  the  proper 
authorities  of  the  State,  where  this  is  not  already  done,  to  notify 
the  register  of  the  United  States  land  office  for  the  district  in 
which  the  land  is  located,  of  such  selection,  ichich  notice  shall  be 


500  Huff  v.  JJoyle. 

regarded  as  the  d(de  of  Ihe  selection."  Now,  su))pose  that  prior  to 
tliis  notification  the  land  had  been  claimed  as  part  ol"  a  Mexican 
grant,  but  it  had  been  finally  determined  that,  tliough  tlie  grant 
itself  was  valid,  it  did  not  include  the  land  selected,  would  not 
the  selection  be  good!'  How  could  it  be  otherwise  when,  at  the  time 
whicli  tlie  statute  says  shall  be  regarded  as  the  date  of  the  selec- 
tion, the  land  was  to  all  intents  and  purposes  restored  to  the  body 
of  the  public  lands  of  the  United  States  by  the  terms  of  a  statute 
on  that  subject?     (Sect.  13.  act  of  March  3.   1851  ;  9  Stat..  633.) 

The  reasons  why  this  proposition  sliould  prevail  as  to  lands  not 
surveyed  at  the  date  of  the  act  are  quite  as  strong,  and  we  find 
accordingly,  that  the  third  section  declares  that  as  to  these  the 
selection  made  under  the  authority  of  the  State  shall  have  the 
same  force  and  effect  as  the  pre-emption  rights  of  a  settler  on  the 
unsurveyed  land,  and  that  the  holder  of  the  State  title  sliall  be 
allowed  the  same  time  after  tlie  surveys  are  made  and  the  plat 
filed  to  prove  up  his  purchase  and  claim  as  is  allowed  to  pre-emp- 
tors  under  existing  laws,  "  and  if  found  in  accordance  with  section 
one  of  this  iict,  the  land  embraced  therein  shall  be  certified  over 
to  the   State  by  the  Commissioner  of  tlie  General  Land   Office." 

If  fouiid  then  to  be  in  accordance  with  section  one,  the  regis- 
ter is  to  examine  his  claim,  the  character,  the  right  asserted,  and 
the  certificates  under  which  he  claims.  He  is  also  to  see  if  it  is 
land  subject  to  be  so  selected,  or  land  which  is  excepted  from  the 
right  of  selection.  If  the  papers  are  right  is  he  to  go  back  to  some 
past  time  and  say  this  land  was  part  of  a  Mexican  claim,  though 
not  so  now.  and  reject  the  application?  Or  is  he  to  say  your 
papers  are  all  right,  the  land  is  public  land  and  open  to  your  claim? 
If  he  should  doubt  on  this  point,  he  has  but  to  look  to  the  previous 
section,  wliere  Congress  has  declared  that  though  the  land  may 
have  been  actually  selected  under  State  authority  years  before, 
yet  the  d(de  of  selection,  for  the  provisions  of  that  act,  shall  be 
determined  by  the  notice  of  the  fact  at  the  land  office,  delivered 
after  the  passage  of  the  statute.  (See  Toland  v.  Mandell,  38 
Cal.,  42-3.) 

As  strongly  tending  to  the  same  conclusion  we  find  that  by  the 
sixth  section  of  the  act  the  right  of  the  State  to  solicit  indemnity 
for  school  sections  included,  or  supposed  to  be  included,  in  a 
Mexican  grant,  accrues  only  when  it  shall  be  found  by  a  final 
survey  of  the  grant  that  it  does  include  some  part  of  a  sixteenth 
or  thirtv-sixth  section. 


Huff  v.  Doyle.  501 

So,  also,  as  we  held  at  this  terra,  in  the  case  of  Sherman  v.  Bvick, 
supra,  that  by  the  seventh  section  of  the  act  of  1853  the  right 
of  selecting  indemnity  lands  for  those  on  which  actual  settlements 
were  made  must  be  determined  by  the  actual  survey  of  the  grant, 
and  of  course  could  not  be  exercised  before  that  time,  and  that 
up  to  that  time  a  valid  settlement  could  be  made  which  would 
deprive  the  State  of  the  land,  though  made  on  what  turned  out  to 
be  a  sixteenth  or  a  thirty-sixth  section. 

In  all  this  we  see  the  purpose  of  Congress  to  refer  the  exercise 
of  the  right  of  the  State  to  select  indemnity  for  school  lands  to  the 
condition  of  the  lands  for  which  indemnity  is  claimed,  as  well  as 
those  out  of  which  it  is  sought,  at  the  time  the  official  surveys  are 
made  and  filed  in  the  proper  office,  or  as  soon  thereafter  as  the 
right  is  asserted. 

There  is  in  what  we  have  here  said  no  conflict  with  the  princi- 
ples laid  down  in  Netohall  v.  Sanger,  92  U.  S.,  761. 

In  that  case  the  claim  under  the  Mexican  grant  called  Moque- 
lamos  was  still  in  litigation  when  the  road  of  the  compan}^  was 
located,  and  when  the  lands  were  withdrawn  from  public  sale. 
These  lands  were  not  then  public  lands  within  the  meaning  of  the 
grant  under  which  the  corporation  claimed. 

Here,  as  we  have  attempted  to  show,  the  land  in  controversy- 
was  public  land  at  the  time  at  which  by  the  statute,  the  State  was 
authorized  to  assert  her  right  of  selection.  It  is  upon  the  language 
of  the  act  of  1866.  and  its  special  provisions  that  we  hold  that  the 
extent  of  the  Mexican  claim  having  been  determined,  and  all  land 
outside  of  the  final  survey  restored  to  the  body  of  the  public  lands, 
the  State  had  a  right  at  the  time  plaintiff  proved  up  his  claim  to 
treat  it  as  public  land,  and  have  the  claim  confirmed. 

Upon  these  views  we  arc  of  opinion  that  the  land  in  contro- 
vers}^  was  rightfully  certified  to  the  State  by  the  land  officers,  and 
that  the  title  of  the  plaintiff  is  perfect. 

The  judgment  of  the  Supreme  Coui't  of  the  State  of  California 
is,  therefore,  reversed,  and  the  cause  remanded  with  directions  to 
affirm  the  judgment  of  the  District  Court  of  the  Third  Judicial 
District,  Count}'^  of  Alameda. 

Mr.  Jtstick  Davis  took  no  part  in  the  decision  of  this  case. 


502  Foley  v.  Harrison. 

Arthur  Morgan  Foley,  plaintiff  in  error,  v.  Samuel  T.  Harri- 
son, defendant,  and  Louis  Lesassier,  intervener. 

December  Terra,  ISaS. — 15  Howard,  4.];^;  W  Curtis,  589. 

The  eighth  section  of  the  act  of  September  4,  1841  (.5  iStats  at  Large, 
455),  granting  lands  to  Louisiana  and  other  States,  did  not  vest  the 
fee  in  those  States,  consequently,  in  a  suit  to  try  the  legal  title,  one 
claiming  such  land,  under  a  patent  from  the  United  States,  must 
prevail  over  one  claiming  under  a  patent  from  the  State. 

Under  the  act  of  August  3,  184G  (9  Stats,  at  Large,  51),  the  (  ommissioner 
of  the  Genei'al  Land  Office  had  power  to  decide,  finally,  on  the 
claims  of  these  parties ;  and  his  decision,  and  a  patent  issued 
thereon,  were  conclusive  in  a  suit  for  tlie  land. 

The  case  is  stated  in  the  opinion  of  the  court. 
Lawrence  for  the  plaintiff.  / 

Benjamin  contra. 

M'Lean,  J.,  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  Supreme  Court  of  the  State  of 
Louisiana. 

A  petitory  action  by  petition  was  commenced  in  the  fifth  dis- 
trict court  of  New  Orleans,  on  the  fifth  of  February,  1847,  by  the 
plaintiff  in  error,  claiming  a  tract  of  land  of  which  the  defendant 
had  possession.  The  plaintiff  claims  under  two  patents  from  the 
State  of  Louisiana,  issued  under  the  law  of  that  State  of  the  25th 
of  March,.  1844,  and  alleges  title  in  the  State,  under  the  act  of 
Congress  of  4th  September,  1841. 

On  the  day  the  action  was  commenced,  the  defendant  filed  his 
answer,  claiming  the  same  land  under  a  purchase  made  by  Robert 
Bell  and  Thomas  Barrett,  from  the  United  States,  the  16th  of 
May,  1836,  and  by  mesne  conveyances  transmitted  to  the  defend- 
ant. He  pleads  a  prescription  of  a  peaceable  possession  of  more 
than  ten  years — that  large  and  valuable  improvements  have  been 
made  on  the  premises,  &c. 

On  the  trial  in  the  district  court  of  New  Orleans,  the  plaintiff 
gave  in  evidence  patents  from  the  State  of  Louisiana,  for  eight 
hundred  and  fifty-five  acres  and  nine  hundredths  of  an  acre,  the 
land  in  controversy,  by  virtue  of  the  act  of  Congress  of  the  4th 
of  September,  1841.  The  certificates  of  entries  of  the  land  were 
also  in  evidence. 


Foley  v.  Harrison.  503 

The  defendant  produced  in  evidence  five  patents  from  the 
United  States,  dated  1st  of  September,  1847,  and  a  sale  of  the 
premises  by  Thomas  Barret  to  Robert  Bell,  by  authentic  act,  on 
17th  May,  1836.  and  a  series  of  mesne  conveyances,  terminating 
in  a  sale  and  conveyance  by  the  widow  R.  Bell  to  the  defendant, 
on  May  9,  1844. 

A  jury  not  being  demanded  under  the  Louisiana  law.  the  court 
gave  judgment  that  the  plaintiff  recover  of  the  defendant  lot  No. 
1.  of  section  3,  township  11,  range  13  east,  containing  two  hun- 
dred and  eleven  acres.  The  plea  of  prescription  was  sustained 
as  to  the  residue  of  the  tract.  From  this  judgment,  the  defend- 
ant appealed  to  the  Supreme  Court  of  the  State. 

The  Supreme  Court  reversed  the  judgment  of  the  district  court, 
and  entered  judgment  in  favor  of  the  defendant  for  the  land,  in 
controversy. 

The  plaintiff,  on  the  ground  that  he  claimed  title  under  an  act 
of  Congress,  and  relied  on  the  construction  of  another  act  to 
nullify  the  title  of  defendant,  and  as  the  decision  of  the  Supreme 
Court  was  against  the  right  asserted  by  him,  procured  the  allow- 
ance of  a  writ  of  error  under  the  25th  section  of  the  judiciary 
act.     (1  Stats,  at  Large,  8.5.) 

The  8th  section  of  the  act  of  4th  September,  1841,  declares  "that 
there  shall  be  granted  to  each  State  specified  in  the  first  section 
of  the  act,  of  which  Louisiana  is  one,  five  hundred  thousand  acres 
of  land,  for  purposes  of  internal  improvement."  provided  such 
State  had  not  received  land  for  that  purpose. 

And  it  is  provided  that  "  the  selections  in  all  of  the  said  States 
shall  be  made  within  their  limits,  respectively,  in  such  manner  as 
the  legislature  shall  direct,  located  in  parcels  conformably  to  sec- 
tional divisions  and  subdivisions,  of  not  less  than  three  hundred 
and  twenty  acres  in  any  one  location,  on  any  public  land,  except 
such  as  is  or  may  be  reserved  from  sale,"  &c. ;  no  locations  to  be 
made  until  the  land  shall  be  surveyed  by  the  United  States. 

In  1844,  the  legislature  of  Louisiana  passed  an  act  establishing 
an  office  for  the  sale  of  the  unlocated  lands  granted  to  the  State, 
with  a  register  and  State  treasurer  as  receiver. 

The  7th  section  of  the  act  makes  it  the  dutj;'  of  the  register  and 
treasurer  to  issue  warrants  for  the  lands  donated  by  Congress,  and 
not  as  yet  located,  provided  they  shall  not  be  issued  for  less  than 
eighty,  nor  more  than  six  hundred  and  forty  acres,  which  war- 
rants shall  be  sold  in  the  same  manner  as  the  lands  located,   pro- 


504  Foley  v.  Harrison. 

vided  they  shall  not  be  sold  for  less  than  $3  per  acre  ;  and  it  shall 
be  the  duty  of  tlie  governor  to  issue  patents  for  all  the  lands  that 
have  beei\  sold,  and  for  the  lands  located  by  warrants,  when  con- 
templated to  be  sold  by  that  act,  whenever  he  shall  be  satisfied 
that  the  same  must  hav^e  been  properly  located." 

Under  the  act  of  Congress  and  the  State  law  the  plaintiff  pur- 
chased, it  is  alleged,  two  warrants  from  the  State  officers,  and  on 
the  7th  of  January,  1848,  entered  them  in  the  land  office  of  the 
United  States  at  New  Orleans  upon  the  lands  in  controversy  ; 
and  it  is  contended  that  these  locations,  independently  of  the 
patent  issued  by  the  State,  being- made  on  pu])lic  land  not  re- 
served from  sale  by  any  law  of  Congress  or  proclamation  of  the 
President,  which  had  been  surveyed,  and  were  entered  in  parcels 
conformably  to  the  act  of  Congress,  gave  the  plaintiff  a  right  to 
the  lands  in  contoversy  under  the  act  of  1841,  unless  the  defend- 
ant had  at  that  time  an  equitable  or  legal  title  to  them. 

The  act  of  1841  authorized  the  State  to  enter  the  lands  where 
surveys  had  been  executed  and  the  lands  were  open  to  entry 
under  the  acts  of  Congress.  The  State  of  Louisiana  acted  within 
its  powers  in  issuing  warrants  and  establishing  land  offices  as  a 
means  of  disposing  of  the  lands  ;  but  it  had  not  the  power  to 
convey  the  fee,  as  it  had  not  been  parted  with  by  the  general 
government.  The  words  of  the  act  of  1841  are,  "that  there  shall 
be  granted  to  each  State."  not  that  there  is  hereby  granted.  The 
words  import  that  a  grant  shall  be  made  in  future.  {Lessieur  et 
al.  y.  Price,  12  Pet.,  75.) 

It  could  not  have  been  the  intention  of  the  government  to 
relinquish  the  exercise  of  power  over  the  public  lands  that  might 
be  located  by  the  State.  The  same  system  was  to  be  observed  in 
the  entry  of  lands  by  the  State  as  by  individuals,  except  the  pay- 
ment of  the  money,  and  this  was  necessary  to  give  effect  to  the 
act,  and  to  prevent  conflicting  entries. 

The  defendant  claims  under  five  patents  from  the  United  States, 
dated  the  1st  of  September,  1847,  which  was  some  months  after 
this  suit  was  commenced.  These  patents  were  issued  under  the 
act  of  3d  of  August,  1846.  That  act  provides  :  '•  That  the  Com- 
missioner of  the  General  Land  Office  be.  and  he  is  hereb}^  author- 
ized and  empowered  to  determine,  upon  principles  of  equity  and 
justice  as  recognized  in  courts  of  equity,  and  in  accordance  with 
general  equitable  rules  and  regulations  to  be  settled  by  the  Secre- 
tary of  the  Treasury,  the   Attorney  General,  and  commissioner 


Foley  v.  Harrison.  505 

conjointly,  consistently  with  such  princii)les,  all  cases  of  sus- 
pended entries  now  existing  in  said  land  offices,  and  to  adjudge 
in  what  cases  patents  shall  issue  upon  the  same."  This  power  is 
limited  to  two  j'-ears,  and  the  exercise  of  it  shall  only  operate  to 
divest  the  title  of  the  United  States,  but  shall  not  prejudice  con- 
flicting claimants. 

By  the  above  act  the  commissioner  was  reijuired  to  arrange  his 
decisions  in  two  classes,  and  the  4th  section  requires  patents  to 
be  issued  in  cases  in  the  first  class. 

On  the  Dth  of  Jul3\  1847,  the  commissioner  reported  to  the 
Secretary  of  the  Treasury  "  ten  entries  by  pre-emption  made  at 
the  land  office  of  New  Orleans  which  were  heretofore  suspended 
at  the  General  Land  Office.  He  says  they  have  been  adjudicated 
by  me,  and  placed  in  the  first  class,  under  the  act  of  the  3d 
August,  1846.  It  is  stated  that  the  first  seven  of  the  ten  cases 
reported  are  entries  by  floats,  arrising  from  settlements  within 
the  Houmas  claim,  and  would  have  been  embraced  with  similar 
cases  in  abstract  No.  13,  but  that  the  land,  in  whole  or  in  part, 
has  been  selected  by  the  State  under  the  act  of  4th  of  September, 
1841,  since  the  floats  were  decided  to  be  illegal  under  the  act  of 
1834."  (4  Stats,  at  Large,  678.)  This  report  is  agreed  to  by  the 
Acting  Secretary  of  the  Treasury  and  the  Attorney  General. 

As  this  decision  was  made  by  a  si)ecial  tribunal,  with  full  powers 
to  examine  and  decide,  and  as  there  is  no  provision  for  an  appeal 
to  an}'  other  jurisdiction,  the  decision  is  final  within  the  law. 

Under  the  pre-emption  act  of  1830  (4  Stats,  at  Large,  420), 
revived  and  continued  for  two  years  by  the  act  of  1834,  pre-emp- 
tion I'ights  were  granted  to  settlers  on  the  public  lands  not  exceed- 
ing to  each  settler  one  hundred  and  sixty  acres  ;  and  where  two 
settlers  are  found  on  the  same  quarter-section,  each  being  entitled 
to  a  pre-emption  for  one  hundred  and  sixty  acres,  the  quarter 
which  they  occupied  was  divided  between  them,  and  each  received 
a  certificate  for  eighty  acres  in  addition,  giving  a  pre-emption 
right  elsewhere  on  the  public  lands,  which  certificates  were  called 
floats.  A  number  of  these  certificates  wei'e  purchased  by  Thomas 
Barrett  and  Eobert  Bell,  and  by  virtue  of  which  they  located  the 
land  in  dispute.  The  settlements  on  which  these  certificates  were 
issued  were  made  on  the  Houmas  claim,  and  as  doubts  existed 
whether  the  land  embraced  by  this  claim  would  be  properly  called 
public  lands  under  the  pre-emption  laws,  the  entries  were  sus- 
pended ;  and  these  were  the  entries  included  in  the  above  report 


506  Foley  v.  Harrison. 

of  the  Commissioner  of  the  General  Land  Office,  and  sanctioned 
b}'  the  Secretary  of  the  Treasury  and  the  Attorney  General. 

The  patents  issued  by  the  State  to  the  i)laintiff  were  dated  the 
^Oth  of  April,  1846  ;  and  it  seems  that,  on  the  9th  of  the  preceding 
month,  the  Commissioner  of  the  General  Land  Office  wrote  to  the 
register  and  recorder  of  New  Orleans  :  "  As  Congress  has  taken 
the  subject  of  the  floating  pre-emption  entries  arising  from  pre- 
emption settlements  within  the  limits  of  the  Houmas  private  claim 
into  consideration,  and  is  about  to  confirm  them  in  the  hands  of 
bona  fide  assignees,  I  deem  it  proper,  in  order  to  prevent  future 
inconvenience,  to  direct  that  all  the  laud  embraced  by  such  entries, 
except  as  to  those  where  the  purchase-money  has  been  refunded 
and  the  claim  abandoned,  be  hereby  considered  as  excused  from 
disposition  in  any  wa3^  either  by  State  selection  or  otherwise. 
The  State  selections  already  made  will  be  suspended  to  await 
the  action  of  Congress.'" 

"If  the  contemplated  law  confirms  all  entries  in  the  hands  of 
honii  Jide  assignees,  it  will,  in  all  probability,  defeat  all  locations 
made  by  State  selections.  In  the  meantime  it  is  necessary  that  all 
appropriations  of  the  lands  covered  by  such  entries  be  suspended." 

It  is  true  that,  on  the  24th  December,  1845,  the  commissioner 
wi'ote  to  the  same  land  office,  "  that,  after  the  cancellation  of  pre- 
emption claims,  if  the  land  is  not  otherwise  interfered  with  or 
reserved,  it  is  considered  as  public  land,  liable  to  be  located  by 
the  State."  And  it  seems  that  the  tracts  for  which  the  plaintiff 
obtained  patents,  were  designated  in  the  letter  of  the  commis- 
sioner as  coming  within  the  category. 

This  decision  or  opinion  of  the  commissioner  did  not  affect  the 
rights  of  the  defendant.,  as  appears  from  subsequent  proceedings 
of  the  same  office.  As  soon  as  the  defendant  was  apprised  of  the 
above  letter,  he  filed  a  caveat  in  the  State  land  office,  and,  on  the 
9th  of  March,  1846,  the  commissioner,  in  his  letter,  as  stated 
above,  suspended  the  plaintiff's  entries.  And  on  the  25th  of 
June,  1847,  the  Secretary  of  the  Treasury,  on  a  representation 
made  by  the  commissioner  of  the  land  office,  "  approved  the  loca- 
tions made  under  the  floating  claims,  held  by  the  actual  settlers, 
who  had  improved  the  land,  in  preference  to  State  locations."  And 
this  decision  was  sustained  in  the  proceedings  under  the  act  of 
the  3d  of  August,  1846,  by  the  report  of  the  commissioner,  sanc- 
tioned by  tlie  Secretary  of  the  Treasury,  and  the  Attorney  Gen- 
eral,  as  above  stated. 


Foley  v.  Harrison.  507 

The  Houmas  claim,  as  filed  before  the  conamissioners  on  land 
titles,  extended  from  the  Mississippi  river  to  tlie  Amite,  embracing 
a  large  extent  of  country.  It  was  confirmed  by  the  commission- 
ers, and  also  b}^  an  act  of  Congress  passed  in  1814.  (3  Stats,  at 
Large,  121.)  This  confirmation,  however,  was  construed  to  be 
limited,  and  not  extending  to  the  boundaries  claimed.  The  sur- 
vey authorized  by  the  Trcasurj^  Department,  extended  only  one 
and  a  half  leagues  back  from  the  river;  and  the  register  and 
receiver  were  instructed  to  treat  the  residue  of  the  claim  as  public 
lands.  This  induced  a  great  many  persons  to  settle  on  the  claim 
up  to  the  3'ear  1836.  In  that  year,  by  order  of  the  land  office, 
the  register  and  receiver  were  directed  to  withhold  from  sale  the 
lands  within  the  claim. 

This  suspension  was  continued,  and  the  patent  certificates 
which  had  been  issued  to  purchasers  were  declared  to  have  been 
issued  without  authority.  Afterwards,  in  1844,  this  claim,  to  its 
whole  extent,  was  recognized  as  valid  by  the  Secretary  of  the 
Treasur}',  in  consequence  of  which,  entries  made  within  the  grant 
were  canceled  and  the  purchase  money  returned.  This  action  of 
the  land  office  has  been  referred  to  for  the  purpose  of  understand- 
ing the  nature  of  the  pre-emption  rights  acquired  by  settlers  upon 
the  Houmas  claim,  and  the  floats  which  were  issued,  as  above 
explained,  under  the  law.  These  floats  were  issued  under  the 
authority  of  the  government,  and,  when  presented  by  bona  Jide 
purchasers,  could  not  be  disregarded.  This  was  the  origin  of  the 
right  set  up  by  the  defendant.  It  has  been  sanctioned  by  the 
land  office,  by  the  Secretary'  of  the  Treasury,  and  the  Attorney 
General,  under  the  act  of  1846,  and  a  patent  has  been  granted. 
Under  the  claim  of  the  defendant,  possession  of  the  land  has 
been  held  many  years,  and  the  improvements  on  it  have  made  it 
of  great  value. 

The  plaintiff's  title  originated  by  his  obtaining  afloat,  as  it  was 
called,  from  the  State  land  office,  at  three  dollars  an  acre,  in 
virtue  of  which  he  located  the  land  in  controvers3\  on  7th  Janu- 
ary, 1846,  with  the  register  of  the  land  office  of  the  United  States. 
The  piaintifi",  through  John  Laidlaw.  made  an  application  to  have 
the  land  specified  in  the  float  or  warrant,  but  the  register  of  the 
State  declined  to  specify  any  lands  in  the  warrant.  He  i-efused 
for  some  time  to  issue  a  patent  on  the  location,  as  he  had  misgiv- 
ings as  to  whether  it  would  be  right  for  him  to  do  so  ;  but.  eventu- 
all3%  he  issued  it  on  the  order  of  the  governor,  to  test  the  validitj' 
of  the  title. 


508  Pollard  v.  Hagan. 

As  the  patent  from  the  State  did  not  convey  the  legal  title  to 
the  plaintiff,  he  ninst  r el}' only  on  his  entry,  and  that,  in  a  petitory 
action,  cannot  stand  against  the  patent  of  the  defendant.  But, 
if  tlie  case  were  before  ns  on  the  equities  of  the  parties,  the  result 
would  be  the  same.  The  entries  of  the  land  claimed  by  the 
defendant  were  prior  in  time  to  those  of  the  plaintiflf",  and  of 
paramount  equity.  The  entries  of  both  claims  were  suspended 
by  the  order  of  the  government ;  and  the  decision  of  the  secretar}', 
and  especially  the  decision  of  the  commissioner,  the  Secretary  of 
the  Treasury,  and  the  Attorney  General,  under  the  act  of  1846, 
was  final,  and  related  back  to  the  original  entries  of  the  land. 
The  circumstances  under  which  the  plaintiff  located  his  warrants 
on  a  very  valuable  sugar  plantation,  of  which  the  defendant  had 
long  been  in  possession,  do  not  strongly  recommend  his  equity. 
We  affirm  the  judgment  of  the  Supreme  Court  of  Louisiana,  with 
costs. 

No'i'K.— The  land  to  which  the  State  was  entitled  under  tliis  act,  could 
not  be  selected  in  any  manner  other  tlian  that  prescribed  by  the  legisla- 
ture of  the  State.     (Hastings  v.  Jacksov,  46  Cal.,  234.) 

When  selections  are  made  by  the  agent  of  the  State,  authorized  to 
select,  and  in  the  manner  prescribed  by  the  legislature,  of  public  land 
subject  to  selection,  the  general  gift  of  quantity  become  a  particular  gift 
of  the  specified  land  selected,  vesting  in  the  State  a  perfect  andabsobite 
title  to  such  lands.     (Bliiduoifh  v.  Luke,  33  Cal.,  -i.oo.) 

If  the  State  issue  a  patent  for  land  to  which  it  has  no  title,  an  after- 
acquired  title  will  enure  to  the  benefit  of  the  patentee,  even  though  the 
title  is  acquired  by  the  State  under  a  ditferent  and  subsequent  act  of 
Congress  than  tliat  under  which  the  State  sold  the  land.  (SriuUhj  v. 
S/tt/^V/,  10  La,  Ann.,  133.) 

Patents  issued  by  the  State,  purporting  to  convey  land  granted  to  the 
State,  is  prima  fade  evidence  of  title,  witliout  showing  that  the  land 
patented  was  actually  embraced  in  the  grant.  .  {(iravi  v.  ^malK  '!('<  ^Mich., 
•201 .) 


JoH^•    P<M.LAKD    ET    AL.,  LESSEE,  plaiutifts    in   error,    v.   John 
Hagan  et  at...  defendants  in  error. 

December  Term,  1844.— 3  Howard,  212  ;  15  Curtis,  391. 

The  State  of  Alabama,  when  admitted  into  the  Union,  became  entitled 
to  the  soil  under  the  navigable  waters  within  ilie  limits  of  tlie  State 
not  previouslj^  granted. 

The  gttect  of  the  ordinance  of  1787  discussed. 


Pollard  v.  Hagan.  509 

The  case  is  stated  in  the  oi)inioii  of  the  coiu't. 
Coxe  for  the  plaintitf. 
Sergeant  contra. 

M'KiNLEY,  J.,  delivered  the  opinion  of  the  court. 

This  case  comes  l)efore  this  court  upon  a  writ  of  error  to  the 
Supreme  Court  of  Alabama. 

An  action  of  ejectment  was  l)roiiglit  by  tlie  i)laintiffs  against 
the  defendants  in  the  Circuit  Court  of  Mobile  County,  in  said 
State,  and  upon  tlie  trial,  to  support  their  action,  "the  plaintiff's 
read  in  evidence  a  patent  from  the  United  States  for  the  premises 
in  question,  and  an  act  of  Cono;ress  passed  the  2d  day  of  July. 
1836  (6  Stats,  at  Large,  680),  confirming  to  them  the  premises  in 
the  patent  mentioned,  together  with  an  act  of  Congress  passed 
on  the  26th  of  May,  1824.  (4  Stats,  at  Large,  66.)  The  premises 
in  question  were  admitted  bj-^  the  defendants  to  be  comprehended 
within  the  patent,  and  there  was  likewise  an  admission  by  both 
parties  that  the  land  lay  been  Church  street  and  North  Boundar}" 
street,  in  the  city  of  Mobile :  and  there  the  plaintiffs  rested  their 
case." 

"The  defendants,  to  maintain  the  issue  on  their  part,  intro- 
duced a  witness  to  })rove  that  the  premises  in  question  between 
the  3"ears  1819  and  1823  were  covered  by  water  of  the  Mobile  river 
at  common  high  tide,"  to  which  evidence  the  plaintifis  by  their 
counsel  objected,  but  the  court  overruled  the  objection,  and  per- 
mitted tlie  evidence  to  go  to  the  jurj-.  "It  was  also  in  proof,  on 
the  part  of  the  defendant,  that  at  the  date  of  the  Spanish  grant 
to  Panton,  Leslie  &  Co..  under  which  they  claim,  the  waters  of 
the  Mobile  bay  at  high  tide  flowed  over  what  is  now  Water  street, 
and  over  about  one-third  of  the  lot  west  of  Water  street,  con- 
vej'^ed  by  the  Spanish  grant  to  Panton,  Leslie  &  Co.,  and  that  the 
waters  continued  to  overflow  Water  street  and  the  premises  sued 
for  during  all  the  time  up  to  1822  or  1823  ;  to  all  which  admis- 
missions  of  evidence  on  the  part  of  the  defendants  the  plaintiffs 
excepted."  "The  court  charged  the  jury  that  if  they  believed 
the  premises  sued  for  were  below  the  usual  hish-water  mark  at 
the  time  Alaliama  was  admitted  into  the  Union,  then  the  act  of 
Congress  and  the  patent  in  pursuance  thereof  could  give  the 
plaintiffs  no  title,  whether  the  waters  had  receded  by  the  labor  of 
man  only  or  by  alluvion  ;  to  which  the  plaintiffs  excepted.  Where- 
upon  a  verdict  and  judgment  were  rendered  in    i'avor  of  the  de- 


510  Pollard  v.  IIagan. 

fendants,  and  which  judginent  was   afterwards   affirmed  by  the 
Supreme  Court  of  the  State." 

This  question  has  been  heretofore  raised  before  this  court  in 
cases  from  the  same  State,  but  they  went  off  upon  other  points. 
As  now  presented,  it  is  the  only  question  necessary  to  the  decision 
of  the  case  before  us,  and  must,  therefore,  be  decided  ;  and  we 
now  enter  into  its  examination  with  a  just  sense  of  its  great  im- 
portance to  all  the  States  of  the  Union,  and  particularly  to  the 
new  ones.  Although  this  is  the  first  time  we  have  been  called 
upon  to  draw  the  line  that  separates  the  sovereignty  and  jurisdic- 
tion of  the  government  of  the  Union  and  the  State  governments 
over  the  subject  in  controversy,  many  of  the  principles  which 
enter  into  and  form  the  elements  of  the  question  have  been  set- 
tled by  previous  well-considered  decisions  of  this  court,  to  which 
we  shall  have  occasion  to  refer  in  the  course  of  this  investigation. 

The  counsel  for  the  plaintiffs  insisted  in  argument  that  the 
United  States  derived  title  to  that  part  of  Alabama  in  which  the 
land  in  controversy  lies,  from  the  king  of  Spain,  and  that  they 
succeeded  to  all  his  rights,  powers,  and  jurisdiction  over  the  terri- 
tory ceded,  and  therefore  hold  the  land  and  soil  under  navigable 
vaters  according  to  the  laws  and  usages  of  Spain,  and  b}-  those 
laws  and  usages  the  rights  of  a  subject  to  land  derived  from  the 
crown  could  not  extend  beyond  high-water  mark  or  navigable 
waters  without  an  express  grant ;  and  that  all  alluvion  belonged 
to  the  crown,  and  might  be  granted  by  this  king,  together  with 
all  land  between  high  wafer  and  the  channel  of  such  navigable 
waters  :  and  by  the  compact  between  the  United  States  and  Ala- 
bama on  her  admission  into  the  Union  it  was  agreed  that  the  people 
of  Alabama  forever  disclaimed  all  right  or  title  to  the  waste  or  unap- 
propriated lands  l.ying  within  the  State,  and  that  the  same  should 
remain  at  the  sole  disposal  of  the  United  States  :  and  that  all  the 
navigable  waters  within  the  State  should  forever  remain  public 
highways,  and  free  to  the  citizens  of  that  State  and  the  United 
States,  without  any  tax,  duty,  or  impost  or  toll  therefor  imposed 
bj'^  that  State  ;  that  by  these  articles  of  the  compact  the  land 
under  the  navigable  waters  and  the  public  domain  above  high 
water  were  alike  reserved  to  the  United  States,  and  alike  subject 
to  be  sold  by  them  ;  and  to  give  any  other  construction  to  these 
compacts  would  be  to  yield  up  to  Alabama  and  the  other  new 
States  all  the  public  lands  within  their  limits. 

We  think  a  proper  examination  of  this  subject  will  show  that 


Pollard  v.  Hagan.  511 

the  United  States  never  held  any  municipal  sovereignty,  jurisdic- 
tion, or  right  of  soil  in  and  to  the  territory  of  which  Alabama  or 
any  of  the  new  States  were  formed,  except  for  temporary  pur- 
poses, and  to  execute  the  trusts  created  by  the  acts  of  the  Virginia 
and  Georgia  legislatures,  and  the  deeds  of  cession  executed  by 
them  to  the  United  State  and  the  trust  created  by  the  treaty  with 
the  French  republic  of  the  30th  of  April,  1803  (8  Stats,  at  Large, 
200),  ceding  Louisiana. 

All  that  part  of  Alabama,  which  lies  between  the  thirty-first 
and  thirty-fifth  degree  of  north  latitude,  was  ceded  by  the  State 
of  Georgia  to  United  States,  by  deed  bearing  date  tlie  24th  day 
of  April,  1802.  which  is  substantially,  in  all  its  princi])les  and 
stipulations,  like  the  deed  of  cession  executed  l)y  Virgina  to  the 
United  States,  on  the  1st  day  of  March,  1784,  by  which  she  ceded 
to  the  United  States  the  territory  northwest  of  the  river  Ohio. 
Both  of  these  deeds  of  cession  stipulated,  that  all  the  lands  within 
the  territory  ceded,  and  not  reserved  or  appropriated  to  other  pur- 
poses, should  be  considered  as  a  common  fund  for  the  use  and 
benefit  of  all  the  United  States,  to  be  faithfully  and  bona  fide  dis- 
posed of  for  that  purpose,  and  for  no  other  use  or  purpose  what- 
ever. And  the  statute  passed  by  Virginia,  authorizing  her 
delegates  to  execute  this  deed,  and  which  is  recited  in  it,  author- 
izes them,  in  behalf  of  the  State,  by  a  proper  deed  to  convey  to 
the  United  States,  for  the  benefit  of  said  States,  all  the  right,  title, 
and  claim,  as  well  of  soil  as  jurisdiction,  '-upon  condition  that  the 
territory  so  ceded  shall  ])e  laid  out  and  formed  into  States,  con- 
taining a  suitable  extent  of  territory,  not  less  than  100,  nor  more 
than  150  miles  square,  or  as  near  thereto  as  circumstances  will 
admit ;  and  that  the  States  so  formed  shall  be  republican  States, 
and  admitted  members  of  the  federal  Union,  having  the  same 
rights  of  sovereignty,  freedom,  and  independence,  as  the  other 
States."  And  the  delegates  conclude  the  deed  thus:  "Now 
know  ye,  that  we,  the  said  Thomas  JeflTerson,  Samuel  Hardy,  Arthur 
Lee,  and  James  Monroe,  by  virtue  of  the  power  and  authority  com- 
mitted to  us  by  the  act  of  the  said  general  assembly  of  Virginia 
before  recited,  and  in  the  name,  and  for  and  on  behalf  of  the  said 
common Weath,  do,  by  these  presents,  convey,  transfer,  assian,  and 
make  over  unto  the  the  United  States  in  Congress  assembled,  for 
the  benefit  of  said  States.  Virginia  inclusive,  all  right,  title,  and 
claim,  as  well  of  soil  as  of  jurisdiction,  which  the  said  common- 
wealth hath  to  the  territory  or  tract  of  country  within  the  limits 


512  Pollard  v.  Hagan. 

of  the  Virginia  charter,  situate,  lyin<^,  ami  beiiiuj  to  the  northwest 
of  the  river  Ohio,  to  and  for  the  uses  and  purposes,  and  on  the  con- 
ditioiis  of  the  said  recited  act." 

And  in  the  deed  of  cession  by  Georijia,  it  is  expressly  stipulated. 
"That  the  territory  thus  ceded  shall  form  a  State  and  be  admitted 
as  such  into  the  Union  as  soon  as  it  shall  contain  sixty  thousand 
free  inliabitants,  or  at  an  eai'lier  period,  if  Congress  shall  think 
it  expedient,  on  the  same  conditions  and  restrictions,  with  the 
same  privileges,  and  in  tlie  same  manner,  as  is  provided  in  the 
ordinance  of  Congress  of  the  13th  day  of  July.  1787.  for  the  gov- 
ernment of  the  Northwestern  Territory  of  the  United  States,  which 
ordinance  shall  in  all  its  parts  extend  to  the  territory  contained 
in  the  present  act  of  cession,  that  article  only  excepted  which 
forbids  slavery."  The  maujier  in  which  the  new  States  were  to  be 
admitted  into  the  Union,  according  to  the  ordinance  of  1787.  as 
expressed  therein,  is  as  follows  : 

'•  And  whenever  any  of  the  said  States  shall  have  sixty  thous- 
and free  inhabitants  therein,  such  State  shall  be  admitted  by  its 
delegates  into  the  Congress  of  the  United  States,  on  an  equal 
footing  with  the  original  States  in  all  respects  whatever."  Thus 
it  appears  that  the  stipulations,  trusts,  and  conditions  are  substan- 
tially the  same  in  both  of  these  deeds  of  cession  ;  and  the  acts  of 
Congress,  and  of  the  State  legislatures  in  relation  thereto,  are 
founded  in  the  same  reasons  of  policy  and  interest,  with  this 
exception  however — the  cession  made  by  Virginia  was  before  the 
adoption  of  the  constitution  of  the  United  States,  and  that  of 
Georgia  afterwards.  Taking  the  legislative  acts  of  the  United 
States,  and  the  States  of  Virginia  and  Georgia,  and  their  deeds  of 
cession  to  the  United  .  States,  aud  giving  to  eacli  sepai-ately,  and 
to  all  jointly,  a  fair  interpretation,  we  must  come  to  the  conclusion 
that  it  was  the  intention  of  the  parties  to  invest  the  United  States 
with  the  eminent  domain  of  tlie  country  ceded,  both  national  and 
municipal,  for  the  puposes  of  temporary  government,  and  to  hold 
it  in  trust  for  the  performance  of  the  stipulations  and  conditions 
expressed  in  the  deeds  of  cession  and  the  legislative  acts  con- 
nected with  them.  To  a  correct  understanding  of  the  rights, 
powers,  and  duties  of  the  parties  to  these  contracts, -it  is  neces- 
sary to  enter  into  a  more  minute  examination  of  the  rights  of 
eminent  domain,  and  the  right  to  the  public  lands. 

When  the  United  States  accepted  the  cession  of  the  territory, 
they  took  upon  themselves  the  trust  to  hold  the  municipal  eminent 


Pollard  u.  Hagan.  513 

(iomaii)  lor  the  new  States,  and  to  invest  them  with  it,  to  the  same 
extent,  in  all  resi)eets.  that  it  was  iield  by  the  States  cediiiu-  the 
territories. 

The  right  wliich  iielonos  to  tlie  society,  or  to  the  .sovereion.  of 
disposing:,  in  case  of  necessity,  and  for  the  public  safety,  oi'  all 
the  wealth  contained  in  tlie  state,  is  called  the  eminent  domain. 
It  is  evident  that  this  right  is.  in  certain  cases,  necessary  to  him 
who  governs,  and  is.  consequently,  a  part  of  the  empire,  or  sover- 
eign power.  (Vat.  Law  of  Nations  ^  244.)  This  definition  shows 
that  tlie  eminent  domain,  although  a  sovereign  power,  does  not 
include  all  sovereign  power,  and  this  explains  the  sense  in  whicli 
it  is  used  in  this  opinion.  The  compact  made  between  the  United 
States  and  the  State  of  Georgia,  was  sanctioned  by  the  constitution 
of  tlie  United  States  ;  by  the  M  section  of  the  fourth  article  of 
which  it  is  declared,  that  '•  new  States  may  be  admitted  by  the 
Congress  into  this  Union  :  but  no  new  State  shall  be  formed  or 
erected  within  the  jurisdiction  of  any  other  State,  nor  any  State 
be  formed  1)y  the  Jnnction  of  two  or  more  States,  or  parts  of  States, 
without  the  consent  of  the  legislatures  of  the  States  concerned, 
as  well  as  of  Congress." 

When  Alabama  was  admitted  into  the  Union,  on  an  ecjual  foot- 
ing with  the  original  States,  she  succeeded  to  all  the  riuhts  of 
sovereignty,  jurisdiction,  and  eminent  domain  which  Georgia  pos- 
sessed at  the  date  of  the  session,  except  so  far  as  this  riglst  was 
diminished  by  the  public  lands  remaining  in  the  possession  and 
under  the  control  of  the  United  States  for  the  temporary  puqioses 
provided  for  in  the  deed  of  cession,  and  the  legislative  acts  con- 
nected with  it.  Nothing  remained  to  the  United  States,  accord- 
ing to  the  terms  of  the  agreement,  but  the  public  lands.  And.  if  an 
express  stipulation  liad  been  inserted  in  the  agreement,  granting 
the  municipal  right  of  sovereignty  and  eminent  domain  to  the 
United  States,  such  stipulation  would  have  been  void  and  inop- 
erative, because  the  United  States  have  no  constitutional  cai)ac- 
ity  to  exercise  municij^al  jurisdiction,  sovereignty  or  eminent 
domain,  within  the  limits  of  a  State  or  elsewhere,  except  in  the 
cases  in  which  it  is  expressly  granted. 

By  the  sixteenth  clause  of  tlie  8th  section  of  the  first  article  of 
the  constitution,  power  is  given  to  Congress  "  to  exercise  exclusive 
legislation  in  all  cases  whatsoever,  over  such  district  (not  exceed- 
ing ten  miles  square)  as  may  by  cession  of  particular  States,  and 
tlie  acceptance  of  Congress,  become  the  seat  oi"  government  of  the 

S3 


514  Pollard  v.  Hagan. 

United  States,  and  to  exercise  like  authority  over  all  places  pur- 
chased by  the  consent  of  the  leii'islature  of  the  State  in  which  the 
same  be,  for  tiie  erection  of  forts,  magazines,  arsenals,  dock-yards, 
and  other  needful  buildings."  Within  the  District  of  Columbia, 
and  the  other  places  purchased  and  used  for  the  purposes  above- 
mentioned,  the  national  and  municipal  powers  of  government,  of 
every  description,  are  united  in  the  government  of  the  Union. 
And  these  are  the  only  cases,  within  the  United  States,  in  which 
all  the  powers  of  government  are  united  in  a  single  government, 
except  in  the  cases  already  mentioned  of  the  temporary  territorial 
governments,  and  there  a  local  government  exists.  The  right  of 
Alabama  and  every  other  new  State  to  exercise  all  the  powers  of 
government,  which  belong  to,  and  may  be  exercised  by  the  origi- 
nal States  of  the  Union,  must  be  admitted,  and  remained  unques- 
tioned, except  so  far  as  the}'  are  temporarily  deprived  of  control 
over  the  public  lands. 

We  will  now  inquire  into  the  nature  and  extent  of  the  right  of  the 
United  States  to  these  lands,  and  whether  that  right  can  in  any  man- 
ner affect  or  control  the  decision  of  the  case  before  us.  This  right 
originated  in  voluntai'v  surrenders,  made  by  several  of  the  old 
States,  of  their  waste  and  unappropriated  lands  to  the  United 
States,  under  a  resolution  of  the  old  Congress  of  the  6th  of  Sep- 
tember, 1 780,  recommending  such  surrender  and  cession  to  aid 
in  paying  the  public  debt  incurred  by  the  war  of  the  Revolution. 
The  object  of  all  the  parties  to  these  contracts  of  cession  was  to 
convert  the  land  into  money  for  the  payment  of  the  debt,  and  to 
erect  new  States  over  the  territory  thus  ceded  ;  and  as  soon  as 
these  purposes  could  be  accomplished  the  power  of  the  United 
States  over  these  lands,,  as  property,  was  to  cease. 

Whenever  the  United  States  shall  haA^e  fully  executed  these 
trusts,  the  municipal  sovereignty  of  the  new  States  will  be  complete 
throughout  their  respective  borders,  and  they  and  the  original 
States  will  be  upon  an  equal  footing  in  all  respects  whatever. 
We,  therefore,  think  the  United  States  hold  the  public  lands  with- 
in the  new  States  by  force  of  the  deeds  of  cession  and  the  statutes 
connected  with  them,  and  not  by  au}^  municipal  sovereignty  which 
it  may  be  supposed  they  possess,  or  have  reserved  by  compact 
with  the  new  States  for  that  particular  purpose.  The  provision 
of  the  constitution,  above  referred  to,  shows  that  no  such 
power  can  be  exercised  by  the  United  States  within  a  State. 
Such  a  power  is  not  only  repugnant  to  the  constitution,  but  it  is 


Pollard  v.  Hagan.  515 

inconsistent  with  the  spirit  and  intention  of  the  deeds  of  cession. 
The  argument  so  much  relied  on  by  the  counsel  for  the  plaintiffs, 
that  the  agreement  of  the  people  inhabiting  the  new  States,  "that 
they  forever  disclaim  all  right  and  title  to  the  waste  or  unap- 
propriated lands  lying  within  the  said  territory  ;  and  that  the  same 
shall  be  and  remain  at  the  sole  and  entire  disposition  of  the  United 
States,"  cannot  operate  as  a  contract  between  the  parties,  but  is 
bindino;  as  a  law.  Full  power  is  given  to  Congress  "to  make  all 
needful  rules  and  regulations  respecting  the  territory  or  other 
property  of  the  United  States."  This  authorized  the  passage  of 
all  laws  necessary  to  secure  the  rights  of  the  United  States  to  the 
public  lands,  and  to  provide  for  their  sale,  and  to  protect  them 
from  taxation. 

And  all  constitutional  laws  are  binding  on  the  people  in  the 
new  States  and  the  old  ones,  whether  they  consent  to  be  bound  by 
them  or  not.  Every  constitutional  act  of  Congress  is  passed  by 
the  will  of  the  people  of  the  United  States,  expressed  through 
their  representatives,  on  the  subject  matter  of  the  enactment:  and 
when  so  passed  it  becomes  the  supreme  law  of  the  land  and  oper- 
ates by  its  own  force  on  the  subject-matter,  in  whatever  State  or 
territory  it  may  happen  to  be.  The  proposition,  therefore,  that 
such  a  law  cannot  operate  upon  the  subject-matter  of  its  enact- 
ment without  the  express  consent  of  the  people  of  the  new  State 
where  it  may  happen  to  be  contains  it  own  refutation,  and  requires 
no  further  examination.  The  propositions  submitted  to  the  peo- 
ple of  the  Alabama  territory,  for  tlieir  acceptance  or  rejection,  by 
the  act  of  Congress  authorizing  them  to  form  a  constitution  and 
State  government  for  themselves,  so  far  as  they  related  to  the 
public  lands  within  that  territory',  amounted  to  nothing  more  nor 
less  than  rules  and  regulations  respecting  the  sales  and  disposition 
of  the  public  lands.  The  supposed  compact  relied  on  by  the  coun- 
sel for  the  plaintifl's  conferred  no  authority,  therefore,  on  Congress 
to  pass  the  act  granting  to  the  plaintiffs  the  land  in  controversy. 

And  this  brings  us  to  the  examination  of  the  question,  whether 
Alabama  is  entitled  to  the  shores  of  the  navigable  waters  and 
the  soils  under  them,  within  her  limits.  The  principle  argument 
relied  on  against  this  right  is,  that  the  United  States  acquired 
the  land  in  controversy  from  the  king  of  Spain,  Although  there 
was  no  direct  reference  to  any  particular  treaty,  we  presume  the 
treaty  of  the  22d  of  February,  1819.  (8  Stats,  at  Large.  252,) 
signed  at  Washington,  was  the  one  relied  on,  and  shall  so  con- 


516  Pollard  r.  PIagan. 

sider  the  ariiuinent.  [t  was  insisted  that  tlie  United  States  liad. 
under  the  treaty,  succeeded  to  all  the  ri«ihts  an<l  powers  of  the 
king  of  Spain  ;  and  as  bj'  the  laws  and  usages  of  Spain  the  king 
liad  the  right  to  grant  to  a  subject  the  soil  under  navigable  waters, 
that,  tlierefore.  the  United  States  had  the  right  to  grant  the  land 
in  controversy,  and  thereby  the  plaintiffs  acquired  a  comjdete 
title. 

If  it  were  true  that  the  United  States  acquired  the  whole  of 
Alabama  from  Spain,  no  sucli  consequences  would  result  as  those 
contended  for.  It  cannot  be  admitted  that  the  king  of  Spain 
could,  by  treaty  or  otherwise,  impart  to  the  United  States  any  of 
his  royal  ])rerogatives  ;  and  much  less  can  it  be  admitted  that  they 
have  capacity  to  receive  or  power  to  exercise  them.  fiver}^ 
nation  acquiring  territory,  by  treaty  or  otherwise,  must  hold  it 
suliject  to  the  constitution  and  laws  of  its  own  government,  and 
not  according  to  those  of  the  government  ceding  it.  (Vat.  i^aw 
of  Nations,  b.  1,  c.  li),  §§  210,  244,  245,  and  b.  2,  c.  7,  §  80.) 

The  United  States  have  never  claimed  any  part  of  the  territory 
included  in  the  States  of  Mississippi  or  Alabama,  under  an}' 
treaty  with  Spain,  although  she  claimed  at  ditferent  perio<ls  a 
considerable  jjortion  of  the  territory  in  both  of  those  States.  By 
the  treaty  between  the  United  States  and  Spain,  signed  at  San 
Lorenzo  el  Keal.  on  the  27th  of  October,  1795  (8  Stats,  at  Large. 
138).  "the  liigh  contracting  parties  declare  and  agree,  that  the  line 
between  the  United  States  and  East  and  West  Florida,  shall  be 
designated  b}-  a  line  beginning  on  the  river  Mississippi,  at  the 
noi'thermost  part  of  the  thirty -first  degree  of  north  latitude,  wiiich 
from  thence  shall  be  drawn  due  east  to  the  middle  of  the  Chata- 
houchee  river,"  &e.  This  treaty  declares  and  agrees  that  the  line 
which  was  described  in  tiie  treaty  of  peace  between  Great  Britain 
and  the  United  vStates,  as  their  southern  boundary,  shall  be  the 
line  which  divides  their  territoi-y  from  East  and  West  Florida. 
The  article  does  not  import  to  be  a  cession  of  territory,  but  the 
adjustment  of  a  controversy  between  the  two  nations.  It  is 
understcjod  as  an  admission  that  the  right  was  originally  in  the 
United  States. 

Had  Spain  considered  herself  as  ceding  territory,  she  could  not 
have  neglected  to  stipulate  for  the  property  of  the  inhabitants,  a 
stipulation  which  every  sentiment  of  justice  and  of  national  honor 
would  have  demanded,  and  which  the  United  States  would  not 
have  refused.     But,  instead  of  requiring  an  article  to  this  effect, 


Pollard  v.  Hmmn.  517 

slie  exprossly  stipulated  to  witlulniw  the  settlements  then  within 
what  the  treaty  admits  to  be  the  territory  of"  the  United  States, 
and  for  permission  to  the  settlers  to  take  their  property  with  them, 
•'We  think  this  an  unequivocal  acknowledgment  that  the  occu- 
pation of  tiie  territory  by  Spain  was  wrongful,  and  we  think  the 
opinion  tinis  clearly  indicated  was  supported  ))y  the  state  of  facts. 
It  follows  that  S])anish  o:rants  made  after  the  treaty  of  peace, 
can  have  no  intrinsic  validity."  (Henderson  v.  Poindexter.  12 
Wheat.,  ^y'di}.) 

Previous  to  the  cession  made  by  Georgia,  the  United  States,  by 
the  act  of  Congress  of  the  7th  of  April,  1798  (1  Stats,  at  Large. 
54!t),  had  established  the  Mississippi  territory,  including  the  ter- 
ritory west  of  the  Chatahouchee  river,  to  the  Mississippi  river, 
above  the  thirty-first  degree  of  north  latitude,  and  below  the 
Yazous  river,  subject  to  the  claim  of  Georgia  to  any  portion  of  the 
territory.  And  the  territorj^  thus  erected  was  subjected  to  the 
ordinance  of  the  13th  of  Jidy,  1787,  for  its  government,  that  part 
of  it  excepted  which  prohibited  slavery.  (1  Story's  Laws,  494.) 
And  by  the  act  of  tiie  1st  of  March.  1817  (3  Stats,  at  Large,  348), 
having  first  obtained  consent  of  Georgia  to  make  two  States 
instead  of  one  within  the  ceded  territory,  Congress  autliorized  the 
inhfibitants  of  the  western  part  of  the  Mississippi  territory,  to 
form  for  themselves  a  constitution  and  State  government,  "to 
consist  of  all  the  territory  included  within  the  following  bound- 
aries, to  wit :  Beginning  on  the  river  Mississippi,  at  the  point 
where  the  southern  boundary  line  of  the  State  of  Tennessee  strikes 
the  same  ;  thence  east  along  the  said  boundary  line  to  the  Ten- 
nessee river  :  thence  up  the  same  to  the  mouth  of  Bear  creek  ; 
thence  by  a  direct  line  to  the  northwest  corner  of  Washington 
county  ;  thence  due  south  to  the  Gulf  of  Mexico  :  thence  west- 
wardly,  including  all  the  islands  within  six  leagues  of  the  shore, 
to  the  junction  of  Pearl  river  with  Lake  Borgne  :  thence  up  said 
river  to  the  thirty-first  degree  of  north  latitude  :  thence  west  along 
said  degree  of  latitude  to  the  Mississippi  river ;  thence  up  the 
same  to  the  beginning."     (3  Story's  Laws,  1620.) 

And  on  the  3d  of  March,  1817.  Congress  passed  an  act  (3  Stats, 
at  Large.  371).  declaring,  "that  all  that  part  of  the  Mississippi 
territory,  which  lies  within  the  following  boundaries,  to  wit : 
Beginning  at  the  point  where  the  line  of  the  thirty-first  degree  of 
north  latitude  intersects  the  Perdido  river ;  then  east  to  the 
western  l)oundary  line  of  the  State  of  Georgia  ;  thence  along  said 


518  Pollard  v.  Hagan. 

line  to  the  southern  boundary  line  of  the  State  of  Tennessee ; 
thence  west  along  said  boundary  line  to  the  Tennessee  river; 
thence  up  the  same  to  the  mouth  of  Bear  creek ;  thence  by  a 
direct  line  to  the  noi'thwest  corner  of  Washington  county  ;  thence 
due  south  to  the  Gulf  of  Mexico  ;  thence  eastwardly,  including 
all  the  islands  within  six  leagues  of  the  shore,  to  the  Perdido 
river ;  thence  up  the  same  to  the  beginning ;  shall,  for  the  pur- 
poses of  temporary  government,  constitute  a  separate  territory, 
and  be  called  Alabama." 

And  by  the  2d  section  of  the  same  act  it  is  enacted  :  "That  all 
offices  which  exist,  and  all  laws  which  may  be  in  force  when  this 
act  shall  go  into  effect,  shall  continue  to  exist  and  be  in  force 
until  otherwise  provided   by  law.      (3  Story's  Laws,  1634,  1635.) 

And  by  the  2d  article  of  the  compact  contained  in  the  ordinance 
of  1787,  which  was  then  in  force  in  the  Mississippi  territory, 
among  other  things  it  was  provided  that  "the  inhabitants  of  the 
said  territory  shall  always  be  entitled  to  the  benefits  of  the  writ 
of  habeas  corpus,  and  of  the  trial  by  jury,  and  of  judicial  proceed- 
ings according  to  the  course  of  the  common  law."  And  by  the 
proviso  to  the  5th  section  of  the  act  of  the  2d  of  March,  1819  (3  Stats, 
at  Large,  489),  authorizing  the  people  of  the  Alabama  territory  to 
form  a  constitution  and  State  government,  it  is  enacted:  "That 
the  constitution,  when  formed,  shall  be  republican,  and  not  repug- 
nant to  the  ordinance  of  the  13th  of  July,  1787,  between  the 
States  and  the  people  of  the  territory  northwest  of  the  Ohio  ri^■er, 
so  far  as  the  same  has  been  extended  to  the  said  territory  (of 
Alabama)  by  the  articles  of  agreement  between  tiie  United  States 
and  the  State  of  Georgia. 

By  these  successive  acts  on  the  part  of  the  United  States,  the 
common  law  has  been  extended  to  all  the  territory  within  the  lim- 
its of  the  State  of  Alabama,  and  therefore  excluded  all  other 
law,  Spanish  or  French. 

It  was.  after  the  date  of  the  treaty  of  the  22d  of  February,  1819, 
between  the  United  States  and  Spain,  but  before  its  ratification, 
the  people  of  the  Alabama  territory  were  authorized  to  form  a 
constitution,  and  the  State  was  admitted  into  the  Union,  accord- 
ing to  the  boundaries  established  when  the  country  was  erected 
into  a  territorial  government.  But  the  United  States  have  never 
admitted  that  they  derived  title  from  the  Spanish  government  to 
any  portion  of  the  territory  included  within  the  limits  of  Ala- 
bama.    Whatever  claim  Spain  may  have  asserted  to  the  territory, 


Pollard  r.  Hauan.  519 

above  the  31.st  degree  of  nortli  latitude,  prior  to  tlie  treaty  of  tlie 
27th  of  October.  179'),  was  abandoned  by  that  treaty,  as  has  been 
already  shown.  "We  will  now  inquire  whether  she  had  any  right 
to  territory  lielow  the  31st  degree  of  north  latitude,  after  the 
treaty  between  France  and  the  United  .States,  signed  at  Paris  on 
the  30th  of  April,  1803,  by  which  Louisiana  was  ceded  to  the 
United  States.  The  legislative  and  executive  departments  of  the 
government  have  constantly  asserted  the  right  of  the  United 
States  to  this  portion  of  the  territory,  under  the  1st  article  of  this 
treaty ;  and  a  series  of  measures  intended  to  maintain  the  right, 
have  been  adopted.  Mobile  was  taken  possession  of  and  erected 
into  a  collection  district  by  act  (2  Stats,  at  Large,  251)  of  the  24th 
of  February.  1804,  c.  13.  (2  Story's,  914.)  In  the  year  1810,  the 
President  issued  his  proclamation,  directing  the  governor  of  the 
Orleans  territory  to  take  possession  of  the  country  as  far  as  the 
Perdido.  and  hold  it  for  the  United  States.  In  April,  1812,  Con- 
gress passed  an  act  to  enlarge  the  limits  of  Louisiana.  (2  Stats. 
at  Large,  708.)  This  act  includes  part  of  the  country  claimed  by 
Spain  as  West  Florida.  And  in  February,  1813  (3  Stats,  at  Large, 
472),  the  President  was  authorized  to  occupy  and  hold  all  that 
tract  of  country  called  West  Florida,  which  lies  west  of  the  river 
Perdido.  not  then  in  the  possession  of  the  United  States.  And 
these  measures  having  been  followed  by  the  erection  of  Missis- 
sippi territory  into  a  State  (3  Stats,  at  Large,  472),  and  the  erec- 
tion of  Alabama  into  a  territory,  and  afterwards  into  a  State  (3 
Stats,  at  Large.  608),  in  the  year  1819.  and  extending  them  both 
over  this  tewitory.  could  it  be  doubted  that  these  measures  were 
intended  as  an  assertion  of  the  title  of  the  United  States  to  this 
country? 

In  the  case  of  Foster  and  EUnn  v.  Ne'dsov  (2  Pet.,  253),  the 
right  of  the  United  States  to  tiiis  country  underwent  a  very  able 
and  thorough  investigation.  And  Chief  Justice  Marshall,  in 
delivering  the  opinion  of  the  court,  said  :  "  After  these  acts  of 
sovereign  power  over  the  territory  in  dispute,  asserting  the 
American  construction  of  the  treaty,  by  which  the  government 
claims  it.  to  maintain  the  opposite  construction  in  its  own  courts, 
would  certainly  Ite  an  anomaly  in  the  history  and  practice  of 
nations.  If  those  departments  which  are  entrusted  with  the 
foreign  intercourse  of  the  nation,  which  assert  and  maintain  its 
interests  against  foreign  powers,  have  unequivocally  asserted  its 
rights  of  dominion  over  a  country  of  which  it  is   in  j^ossession, 


520  Pollard  n.  Uagan. 

and  which  it  chiiins  under  :i  treaty  :  if  the  leuishiture  has  acted 
on  the  conatniction  thus  asserted,  it  is  not  in  its  own  courts  that 
this  construction  is  to  ))e  denied."  The  Cliief  Justice  then  dis- 
cusses tlie  validity  of  tlie  orant  made  by  the  Spanish  government 
aftei-  the  ratification  of  the  treaty  between  the  United  States  and 
France,  and  it  is  finally  rejected  on  the  ground  that  the  country 
belonged  to  the  United  States,  and  not  to  Spain,  when  the  grant 
was  made.  The  same  doctrine  was  maintained  by  this  court  in 
the  case  of  Garcia  v.  Lee  (12  Pet.,  oil).  These  cases  establish, 
beyond' controversy,  the  right  of  the  United  States  to  the  whole  of 
this  territory  under  the  treaty  with  France. 

Alabama  is.  therefore,  entitled  to  the  sovereignty  and  jurisdic- 
tion over  all  the  territory  within  her  limits,  subject  to  the  common 
law,  to  the  same  extent  that  Georgia   possessed   it  before  she 
ceded  it  to  the  United  States.     To  maintain   any  other  doctrine, 
is  to  deny  that  Alabama  has  been  admitted  into  the  Union  on  an 
equal  footing  with  the  original  States,  the   constitution,  laws  and 
compact  to  the  contrary  notwithstanding.     But  her  rights  of  sov- 
ereignty and  jurisdiction  are  not  governed  by  the  common  law  of 
England,  as  it  prevailed  in  the  colonies  before  the  revolution,  but 
as  modified  by  our  own  institutions.     In  the  case  of  Martin  and 
others  V.    WaMell  (16    Pet.,  410),   the  present  Chief  Justice,  in 
delivering  the  opinion  of  the  court,  said  :     "When  the  revolution 
took  place,  the  people  of  each  State  became  themselves  sovereign  ; 
and,  in  that  character,  hold  the  absolute  right  to  all  their  nav- 
igable waters,  and  the  soils  under  them,   for  their  own  common 
use,  subject  only  to  the  rights  since  surrendered  by  the  constitu- 
tion."    Then,  to  Alabama  belong  the  navigable  waters,  and  soils 
under  them,  in   controversy  in   this  case,  subject  to   the  rights 
surrendered    by  the  constitution  to  the  United  States;  and  no 
compact  that  might  be  made  between  her  and  tlie  United   States 
could  diminish  or  enlarge  these  rights. 

The  declaration,  therefore,  contained  in  tlie  compact  entered 
into  between  them  when  Alabama  was  admitted  into  the  Union, 
"that  all  navigable  waters  within  the  said  State  shall  forever 
remain  public  highways,  free  to  the  citizens  of  said  State  and  of 
the  United  States,  without  any  tax,  duty,  impost  or  toll  therefor 
imposed  by  the  said  State."  would  be  void  if  inconsistent  with  the 
constitution  of  the  United  States.  But  is  this  provision  repug- 
nant to  the  constitution?  By  the  8th  section  of  the  1st  article  of 
the  constitution  power  is  granted  to  Congress   "to   regulate  com- 


Pollard  r.  Hainan.  521 

nierce  with  foreign,  nations  and  anioiiii  tlie  several  States."  If  in 
the  exercise  of  this  [jovver  Congress  can  impose  the  same  restric- 
tions npon  the  original  States  in  relation  to  tlieir  navigable  waters 
as  are  imposed  b}^  this  article  of  the  compact  on  the  State  of  Ala- 
bama, then  this  article  is  a  mere  regulation  of  commerce  among 
the  several  States,  according  to  the  constitution.  ;ni(l  tlierefore  as 
binding  on  the  other  States  as  Alabama. 

In  tlie  case  of  Gibbons  v.  Ogdeii  (9  Wheat..  IDo),  after  examining 
the  preliminary  questions  respecting  the  regulation  of  commerce 
with  foreign  nations  and  among  the  States,  as  connected  with  the 
subject-matter  there  in  controversy,  Chief  Justice  Marshall  said  : 
"We  are  now  arrived  at  the  inquiry,  What  is  this  power?  It  is 
the  power  to  regulate — that  is,  to  prescribe — the  rule  by  which 
commerce  is  to  be  governed.  This  power,  like  all  others  vested 
in  Congress,  is  complete  in  itself,  may  be  exercised  to  its  utmost 
extent,  and  acknowledges  no  limitations  other  than  are  prescribed 
in  the  constitution.  These  are  expressed  in  plain  terms,  and  do 
not  affect  the  questions  which  arise  in  this  case.  If,  as  has  been 
always  understood,  the  sovereignty  of  Congress,  though  limited 
to  specified  objects,  is  plenary  as  to  those  objects,  the  power  over 
commerce  with  foreign  nations  and  among  the  several  States  is 
vested  in  Congress  as  absolutely  as  it  would  be  in  a  single  govern- 
ment having  in  its  constitution  the  same  restrictions  on  the  exer- 
cise of  the  power  as  are  found  in  the  constitution  of  the  United 
States." 

As  the  provision  of  what  is  called  the  compact  between  the 
United  States  and  the  State  of  Alabama  does  uot  by  the  above 
reasoning  exceed  the  power  thereb}'  conceded  to  Congress  over 
the  original  States  on  the  same  subject,  no  i)ower  or  right  was, 
by  the  compact,  intended  to  be  reserved  by  the  United  States,  nor 
to  be  granted  to  them  b}'  Alabama. 

This  supposed  compact  is.  therefore,  nothing  more  than  a  regu- 
lation of  commerce  to  that  extent  among  the  several  States,  and 
can  have  no  controlling  influence  in  the  decision  of  the  case  before 
us.  This  right  of  eminent  domain  over  the  shores  and  the  soils 
under  the  navigable  waters  for  all  municipal  purposes  belongs 
exclusively  to  the  States  within  their  res]Dective  territorial  juris- 
dictions, and.  they,  and  they  only,  have  the  constitutional  power 
to  exercise  it.  To  give  to  the  United  States  the  right  to  transfer 
to  a  citizen  the  title  to  the  shores  and  the  soils  under  the  navigable 
waters  would  be  placing  in  their  hand  a  weapon  which  might  be 


522  Pollard  v.  Hagan. 

wielded  greatly  to  the  injury  of  State  sovereignty,  and  deprive 
the  States  of  the  power  to  exercise  a  numerous  and  important 
class  of  police  powers.  But  in  the  hands  of  the  States  tliis  power 
can  never  be  used  so  as  to  affect  the  exercise  of  any  national  right 
of  eminent  domain  or  jurisdiction  with  which  the  United  States 
have  been  invested  by  the  constitution  ;  for.  although  the  territorial 
limits  of  Alabama  have  extended  all  her  sovereign  power  into  the 
sea,  it  is  there,  as  on  the  shore,  but  municipal  power,  subject  to  the 
constitution  of  the  United  States  "and  the  laws  which  shall  be 
made  in  pursuance  thereof." 

By  the  preceding  course  of  reasoning  we  have  arrived  at  these 
general  conclusions  :  First.  The  shores  of  navigable  waters  and 
the  soils  nnder  them  were  not  granted  by  the  constitution  to  the 
United  States,  but  were  reserved  to  the  States  respectively. 
Secondly.  The  new  States  have  the  same  rights,  sovereignty,  and 
jurisdiction  over  this  subject  as  the  original  States.  Thirdly. 
The  right  of  the  United  States  to  the  public  lands,  and  the  power 
of  Congress  to  make  all  needful  rules  and  regulations  for  the  sale 
and  disposition  thereof,  conferred  no  power  to  grant  to  the  plain- 
tiffs the  land  in  controversy  in  this  case. 

The  judgment  of  the  Supreme  Court  of  the  State  of  Alabama 
is,  therefore.  Affirmed. 

Catron,  J.,  dissented. 

The  statute  of  1836  and  the  patent  of  the  United  States 
founded  on  it,  by  which  the  land  in  controversy  was  granted  to 
William  Pollard's  heirs,  have,  on  several  occasions  heretofore, 
received  the  sanction  of  this  court  as  a  valid  title. 

1.  In  the  case  of  PallanVs  Heirs  v.  Kihhe  (14  Pet.,  3.53),  the 
Supreme  Court  of  Alabama  having  pronounced  an  opposing  claim 
under  the  act  of  1824  superior  to  Pollard's,  this  court  reversed  the 
judgment  and  established  the  latter,  after  the  most  mature  con- 
sideration. 

2.  In  the  case  of  Polhi.rd  v.  Files  (2  How.,  51)1).  the  precise  title 
was  again  brought  before  the  court,  and  ver^'  maturely  considered. 
It  was  then  said  (page  602):  "This  court  held,  when  Pollard's 
title  was  l)efore  it  formerly,  that  Congress  had  the  power  to  grant 
the  land  to  him  by  the  act  of  1836.  On  this  point  there  was  no 
difference  of  opinion  at  that  time  among  the  judges.  The  differ- 
ence to  which  the  Supreme  Court  of  Alabama  refers  (in  its  own 
opinion   in  the  record)  grew  out  of  the  construction  given  by  a 


Pollard  v.  Hagan.  523 

majority  of  the  court  to  the  act  of  1824,  b}^  which  the  vacant  lands 
east  of  Water  street  were  granted  to  the  city  of  Mobile. 

On  this  occasion  the  decision  of  the  Supreme  Court  of  Alabama 
was  again  reversed,  and  Pollard's  heirs  ordered  to  be  put  into  pos- 
session, and  they  now  maintain  it  under  our  two  judgments.  It 
is  here  for  the  third  time. 

In  the  meantime,  between  1840  and  1844,  a  doctrine  had  sprung 
up  in  the  courts  of  Alabama,  (previously  unheard  of  in  anj'  court 
of  justice  in  this  country,  so  far  as  I  know),  assuming  that  all  lands 
temporarily  flowed  with  tide  water  were  part  of  the  eminent 
domain  and  a  sovereign  right  in  the  old  States  ;  and  that  the  new 
ones  when  admitted  into  the  Union,  coming  in  with  equal  sovereign 
rights,  took  the  lands  thus  flowed  b}'  implication  as  an  incident 
of  State  sovereignty,  and  thereby  defeated  the  title  of  tlie 
United  States,  acquired  either  by  the  treaty  of  1803.  or  by  the 
compacts  with  Virginia  or  Georgia.  Although  the  assumption 
was  new  in  the  courts,  it  was  not  entirely  so  in  the  political  dis- 
cussions of  the  country  ;  there  it  had  been  asserted,  that  the  new 
States  coming  in,  with  equal  rights  appertaining  to  the  old  ones, 
took  the  high  lands  as  well  as  the  low,  by  the  same  implication 
now  successfully  asserted  here  in  regard  to  the  low  lands ;  and 
indeed  it  is  diflicult  to  see  where  the  distinction  lies.  That  the 
United  States  acquired  in  a  corporate  capacity  the  right  of  soil 
under  water,  as  well  as  of  the  high  lands,  by  the  treaty  with  France, 
cannot  be  doubted  ;  nor  that  the  right  of  soil  was  retained  and 
subject  to  grant  up  to  the  time  Alabama  was  admitted  as  a  State. 
Loui-iiana  was  admitted  in  1812  (2  Stats,  at  Large,  701);  to  her 
the  same  rules  must  apply  that  do  to  Alabama.  All  acquainted 
with  the  surface  of  the  latter  know  that  many  of  the  most  pro- 
ductive lands  there,  and  now  in  successful  cultivation,  were  in 
1812.  subject  to  overflow,  and  have  since  been  reclaimed  by  levees. 

It  is  impossible  to  deal  with  the  question  before  us  understand- 
ingly  without  reference  to  the  physical  geography  of  the  delta 
of  the  JMississippi  and  the  countr}'  around  tiie  r4ulf  of  ^Mexico, 
where  the  most  valuable  lands  have  been  made  and  are  now  forming 
by  alluvion  deposits  of  the  floating  soils  brought  down  by  the  great 
rivers  the  earlier  of  which  had  become  dry  lands  :  but  the  most 
recent  were  flowed,  when  we  acquired  the  country,  and  are  in  great 
part  yet  so  ;  thus  situated  they  have  been  purchased  from  the 
United  States  and  reclaimed ;  a  process  that  is  now  in  daily 
exercise.     An  assumption  that  mud  flats  and  swamps  once  flowed, 


524  P()i,r,ARi)  V.  Hacjan. 

but  loiiii  since  reclaimed.  luiil  [):isse(l  to  tiie  new  States,  on  tlie 
theory  of  sovereiiiii  rights,  did,  at  the  first,  strike  my  mind  as  a 
startlino;  novelty  ;  nor  have  I  been  enabled  to  relieve  myself  from, 
the  impression  owing  to  the  fact  in  some  degree,  it  is  admitted, 
that  for  thirty  years  neither  Congress,  nor  any  State  legislature, 
has  called  in  question  the  power  of  the  United  States  to  grant  the 
flowed  lands,  moi-e  than  others  ;  the  origin  of  title,  and  its  con- 
tinuance, as  to  either  class,  being  deemed  the  same.  A  right  so 
obscure,  and  which  has  lain  dormant,  and  even  unsuspected,  for 
so  man\'  years,  and  the  assertion  of  which  will  strip  so  much  city 
property,  and  so  many  estates  of  all  title,  should  as  T  think  be 
coricluded  by  long  acquiescence,  and  especially  in  courts  of  justice. 

Again,  the  (piestion  before  us  is  made  to  turn  by  a  majority 
of  my  brethren  exulusively  on  jjolitical  Jurisdiction  :  the  right  of 
property  is  a  mere  incident.  In  such  a  case,  where  there  is  doubt, 
and  a  conflict  suggested,  the  political  departments.  State  and 
federal,  should  settle  the  matter  by  legislation  :  by  this  means 
private  owners  could  be  provided  for  and  confusion  avoided  ;  but 
no  State  complains,  nor  has  any  one  ever  complained,  of  the 
infraction  of  her  political  and  sovereign  rights  by  the  United  States, 
or  by  their  agents,  in  the  execution  of  the  great  trust  imposed  on 
the  latter  to  dispose  of  the  public  domain  for  the  common  benfit : 
on  the  contrary,  we  are  called  on  by  a  mere  trespasser  in  the  midst 
of  a  city,  to  assert  and  maintain  this  sovereign  right  for  his  indi- 
vidual ]irotection,  in  sanction  of  the  trespass. 

But  as  already  stated,  the  United  States  may  be  an  owner  of 
pioperty  in  a  State,  as  well  as  another  State,  or  a  private  corpor- 
ation, or  an  individual  may.  Tliat  the  proprietary  interest  is  large, 
cannot  alter  the  principle.  I  admit  if  the  agents  of  the  United 
States  obstruct  navigation,  the  State  authorities  may  remove  the 
obstructions  and  punish  the  offenders  ;  so  the  States  have  done 
for  many  years  without  inconvenience  or  complaint. 

Nor  can  material  inconvenience  result.  If  a  front  to  a  city,  or 
land  for  another  purpose  is  needed.  Congress  can  be  applied  to 
for  a  grant,  as  was  done  by  the  corporation  of  Mobile,  in  1824  ;  if 
the  State  where  the  land  lies  was  the  owner,  the  same  course  would 
have  to  be  pursued.  The  States  and  the  United  States  are  not  in 
hostility  ;  the  people  of  the  one  are  also  the  people  of  the  other ; 
justice  and  donation  is  alike  due  from  each. 

Connecticut  was  once  a  large  proprietor  in  the  Northwest  Terri- 
tory, (now  Ohio.)     Slie  owned   the  shores  of  a  great  lake  and  tlie 


POLLAKIi  r.  liAfJAN.  525 

V)tnil<s  of  iiavi;;i:ibl»'  rivers.  Can  it  be  nssnined  tlmttlie  admission, 
of  Ohio  defeated  the  title  of  Connecticut,  and  tliat  she  could  not 
"rant?  The  question  will  not  bear  discussion  ;  and  how  can  the 
case  put  be  distinguished  from  the  other  one  before  us.  Nay,  how 
can  either  be  distinonished  from  the  risrhts  of  private  owners  of 
lands  above  water,  or  nnder  the  water?  Yet  in  either  instance,  is 
the  owner  in  fee  dei)rived  of  his  property,  on  tliis  assuin))tion  of 
sovereign  rights? 

The  front  of  the  city  of  Mobile  is  clainied  by  the  act  o\'  1824. 
sanctioned  by  this  court  as  a  valid  grant  in  the  five  cases  of  Polhml 
V.  Kihbe,  14  Pet.,  353  :  of  The  City  of  Mohih-  v.  Eshvvo.  Ifi  Pet.. 
284:  of  the  same  plaintiff  v.  IMM,  16  Pet..  201  :  of  the  same 
plaintiff  V.  Emainiel.  1  How.,  9;").  and  of  Po/hird  v.  Files.  2  How., 
591.  Except  the  grant  to  Pollard,  the  act  of  1824  confers  the 
entire  title  (so  far  as  is  known  to  this  court),  of  a  most  valuable 
portion,  and  a  ver}-  large  portion,  of  tlie  second  city  on  the  Gulf 
of  Mexico,  in  wealth  and  population. 

This  act  is  declared  void  in  the  i)resent  cause  :  and  the  previous 
decisions  of  this  court  are  either  directly,  or  in  effect,  overtlu'own. 
and  the  private  owners  stripped  of  all  title.  On  this  latter  point 
ray  brethern  and  I  fully  agree.  Can  Alabama  remedy  the  evil,  and 
confirm  the  titles  by  legislation  or  by  patent?  I  say  by  patent, 
because  this  State,  Louisiana.  Mississippi,  and  surely  Florida, 
will  of  necessity  have  to  adopt  some  system  of  giving  title,  if  it  is 
possible  to  do  so.  aside  from  private  legislation  :  as  tlie  flowed 
lands  are  too  extensive  and  valuable  for  the  latter  mode  of  grant 
in  all  instances. 

The  charge  of  the  State  court  to  the  jury  was,  that  the  act  of 
Congress  of  1836,  and  the  patent  founded  on  it,  and  also,  of  course, 
the  act  of  1824,  were  void,  if  the  lands  granted  by  them  were 
flowed  at  high  tide  when  Alabama  was  admitted :  and  it  was 
immaterial  whetlier  the  mud  flat  liad  lieen  fdled  \\\)  and  the  water 
excluded  by  the  labor  of  man  or  by  natnral  alluvion.  And  this 
charge  is  declared  to  have  been  proper  by  a  majority  of  this  court. 

The  decision  founds  itself  on  the  right  of  navigation,  and  of 
police  connected  with  navigation.  As  a  practical  truth,  the  mud 
flats  and  other  alluvion  lands  in  the  delta  of  the  river  jNlississippi. 
and  around  the  Gulf  of  Mexico,  formed  of  rich  deposits,  have  no 
connection  with  navigation.  Imt  obstruct  it.  and  must  be  reclaimed 
for  its  furtherance. 

This  is  wel)  ilhistrated  l)v  the  recent  liistorv  f)f  Moliile.     When 


526  Pollard  v.  Hagan. 

the  act  of  1824  was  passed,  granting  to  the  corporation  the  front 
of  the  city,  it  was  excluded  from  the  navigable  channel  of  the 
river  b}'  a  mud  flat,  slightly  covered  with  water  at  high  tide,  of 
perhaps  a  thousand  feet  wide.  This  had  to  be  filled  up  before 
the  city  could  prosper,  and  of  course  by  individual  enterprise,  as 
the  vacant  space,  as  was  apparent,  must  become  city  property ; 
and  it  is  now  formed  into  squares  and  streets,  haying  wharves  and 
warehouses.  The  squares  are  built  up  ;  and  the  fact  that  part  of 
the  cit_y  stands  on  land  once  subject  to  the  flovv  of  tide,  will  soon 
be  a  matter  of  history. 

At  New  Orleans,  and  at  most  other  places  fronting  rivers  where 
the  tide  ebbs  and  flows,  as  well  as  on  the  ocean  and  great  lakes,  nav- 
igation is  facilitated  by  similar  means  ;  without  their  employment 
few  city  fronts  could  be  formed,  at  all  accommodated  to  navigation 
and  trade.  To  this  end  i^rivate  ownership  is  indispensable  and 
universal :  and  some  one  must  make  title.  If  the  United  States 
has  no  power  to  do  so,  who  has?  I  repeat,  can  Alabama  graiit 
the  soil?  She  disavowed  all  claim  and  title  to  and  in  it,  as  a 
condition  on  which  Congress  admitted  her  into  the  Union. 

By  the  act  of  March  2,  1819  (3  Story's  Laws,  1726),  the  Alabama 
territory  was  authorized  to  call  a  convention,  and  form  a  State 
constitution ;  but  Congress  imposed  various  restrictions,  and 
among  others  the  following  one  : 

"And  provided  always,  that  the  said  convention  shall  provide 
by  an  ordinance,  irrevocable  without  the  consent  of  the  United 
States,  that  the  people  inhabiting  said  territory  do  airree  and 
declare  that  they  forever  disclaim  all  right  and  title  to  the  waste 
or  unappropriated  lands  lying  within  the  said  territory,  and  that 
the  same  shall  be  and  remain  at  the  sole  and  entire  disposition 
of  the  United  States." 

On  the  2d  of  August,  1819,  the  convention  of  Alabama  formed 
a  constitution,  and  adopted  an  ordinance  declaring  '-that  this 
convention,  for  and  on  behalf  of  the  people  inhabiting  this  State. 
do  ordain,  agree  and  declare  that  they  forever  disclaim  all  right 
and  title  to  the  waste  or  unappropriated  lands  lying  within  this 
State  ;  and  tliat  the  same  shall  be  and  remain  at  the  sole  and 
entire  disposition  of  the  United  States."  In  addition,  all  the 
propositions  offered  by  the  act  of  March  2,  1819,  were  generally 
accepted  without  reservation. 

On  the  14th  of  December,  1819.  Congress,  by  resolution, 
admitted  Alabama  as  a  State,  on  conditions  above  set  forth.  (8 
Story's  Laws,  U.  S.,  1804.) 


Pollard  v.  Hagan.  527 

That  tlie  lands  in  contest,  and  granted  by  the  acts  of  1824  and 
1836,  were  of  the  description  of  '"waste  or  unappropiated,"  and 
subject  to  the  disposition  of  the  United  .States,  when  the  act  of 
Congress  of  the  2d  of  March.  1811).  was  passed,  is  not  open  to 
controversy,  as  already  stated  ;  nor  has  it  ever  been  controverted, 
that  whilst  the  territorial  government  existed,  any  restrictions 
to  give  private  titles  were  imposed  on  the  federal  government ; 
and  this  in  regard  to  any  lands  that  could  be  granted. 

And  I  had  supposed  that  this  right  was  clearly  reserved  by  the 
recited  compacts,  as  well  as  on  the  general  principle  that  the 
United  States  did  not  part  with  the  right  of  soil  by  enabling  a 
State  to  assume  political  jurisdiction.  That  the  disclaimer  of 
Alabama,  to  all  right  and  title  in  the  waste  lands,  or  in  the  unap- 
propriated lands,  lying  within  the  State,  excludes  her  from  any 
interest  in  the  soil,  is  too  manifest  for  debate,  aside  from  all 
inference  founded  on  general  principles. 

It  follows,  that  if  the  United  States  cannot  grant  these  lands, 
neither  can  Alabama ;  and  no  individual  title  to  them  can  ever 
exist.  And  to  this  conclusion,  as  I  understand  the  reasoning  of 
the  principal  opinion,  the  doctrine  of  a  majority  of  m}^  brethren 
mainly  tends.  The  assumption  is  that  flowed  lands,  including 
mud  flats  extending  to  navigable  waters,  appertain  to  such  waters, 
and  are  clothed  with  a  sovereign  political  right  in  the  State  ;  not 
as  property,  but  as  a  sovereign  incident  to  navigation,  which 
belongs  to  the  political  jurisdiction  ;  and  being  part  of  State 
sovereignty,  the  United  States  could  not  withhold  it  from  Alabama. 
On  this  theory,  the  grants  of  United  States  are  declared  void  ; 
conceding  to  the  theory  all  the  plentitude  it  can  claim,  still 
Alabama  has  only  political  jurisdiction  over  the  thing ;  and  it 
must  be  admitted  that  jnrisdiction  cannot  be  the  subject  of  a 
private  gi'ant. 

The  present  question  was  first  brought  directly  before  this 
court  (as  I  then  supposed,  and  now  do),  in  the  cause  of  The  City 
of  Mobile  V.  Esliivd,  in  1849,  when  my  opinion  was  expressed  on 
it  at  some  length.  It  will  be  found  in  16  Pet.,  247,  and  was  in 
answer  to  the  opinion  of  the  Supreme  Court  of  Alabama,  sent  up 
as  part  of  the  I'ecord,  having  been  filed  pursuant  to  the  statute 
of  that  State,  found  in  Clay's  Digest,  288,  §  6.  My  opinion,  then 
given,  has  been  carefully  examined,  and  so  far  as  it  goes,  is 
deemed  correct  (except  some  errors  of  the  press),  nor  will  the 
reasons  given  be  repeated. 


528  Pollard  o.  Haoan. 

ill  Ilalletf  s  ouse  (IG  Pet.,  2C}'6),  reasons  were  added  to  the 
former  opinion.  And  again,  in  the  caseof  Emannol.  the  question 
is  referred  to  in  an  opinion  found  in  1  How..   101. 

In  PollarcVa  Lessei^  v.  Filas  (2  How.,  602).  the  question  whether 
Congress  had  power  to  grant  the  land  now  in  controversy,  was 
treated  as  settled.  As  the  Judgment  was  exclusivel,y  founded  on 
the  act  of  1S36  (tlie  ))laintifr  having  adduced  no  other  title),  it  was 
impossible  to  reverse  the  judgment  of  the  Supreme  Court  of 
Alabama  on  anj'  other  assumption  than  that  the  act  of|  Congress 
conferred  a  valid  title.  I  delivered  that  opinion,  and  it  is  due  to 
myself  to  say  thai  it  was  the  unanimous  judgment  of  tlie  members 
of  the  court  then  present. 

I  have  expressed  these  views  in  addition  to  those  formerly 
given,  V)ecause  this  is  deemed  one  of  the  most  important  contro- 
versies ever  brought  !)efore  this  court  on  any  title,  either  as  it 
respects  the  amount  of  pro!)erty  involved,  or  the  principles  on 
which  the  present  judgment  proceeds — ))rinciples.  in  ray  judg- 
ment, as  applicable  to  the  high  lands  of  the  United  States  as  to 
the  lowlands  and  shores. 


Note. — The  .same  doctrhie  held  m  Goodlittle  v.  Kibbe,  9  How.,  471; 
and  Doev.  Beebe^  13  How.,  '25;  New  (Means  y.  United  States,  10  Peters, 
662.  The  same  rights  are  claimed  by  the  territories,  ilcnman  v.  War- 
ner^ 6  Oregon,  40S. 

Upon  a  State  being  admitted  into  the  Union,  she  becomes  tlie  owner 
of  the  soil  under  her  navigable  waters.  Freedmun  v.  Gondwhi,  1  McAl- 
lister, 142;   Griffin  Y.  Gibb,  1  McAllister,  212. 

The  State  is  the  owner  of  the  soil  to  high  water  mark.  Gwj  v.  fler- 
mance,  "»  Cal.,  73;  Ward\\  Mulford,  32  Cal.,  365  ;  Farrish  v.  Coon.  4()Cal.. 
33  ;   Taylor  \.  Underhill,  40  C  al..  471 . 

Neither  the  State  nor  the  United  States  has  asserted  any  right  or  claim 
to  the  bed  of  the  small  lake  within  the  State,  and  where  the  water  continues 
so  shallow  as  to  render  the  land  under  it  susceptible  of  beneficial  private 
use.  the  riparian  ownership  extends  to  the  centre  line  of  the  lake,  unless 
there  be  an  intervening  island,  which  the  government  has  shown  an 
intention  to  reserve  from  the  grant  of  the  main  land  by  surveying  it,  as 
a  separate  tract,  in  which  case  the  riparian  ownership  would  extend 
only  to  the  center  line  between  the  island  and  the  main  land.  Rice  v. 
Jinddeman,  10. Mich.,  125. 

All  islands  situated  in  the  Missouri  river  at  the  time  the  public  lands 
were  surveyed,  continue  to  be  the  property  of  the  government,  with  all 
accretions,  until  surveyed  and  sold ;  and  the  owners  of  an  adjoining 
island  would  acquire  no  title  to  such  island  by  mutual  accretions  bring- 
ing the  two  islands  togetiier.     Benson  v.  Morrow,  61  Mo.,  345. 


Jones  r.  Soulard.  529 

Braddoc  K     JoxKs.    j)];uiuiff    ill    error.    '•.  Jamks    G.    Sotlai;d. 
December  Term.  18()().— 24   floward.  41  ;  4  Miller,  8. 
Ripr<iriaii  Oumi-r.sliiji. — Boundaries  on  the  Mississippi. 

1  •  All  gi'ants  of  land  bounded  by  fresh  water  rivers,  where  the  expressions 
desiirnatino:  the  water-line  are  general,  confer  proprietorship  to  the 
middle  thread  of  the  stream. 

2.  'I'he  owner  of  such  a  grant  becomes  entitled  to  accretions  as  they  are 
formed. 

.^.  'I'his  rule  applies  to  the  great  navigable  rivers,  such  as  the  Mississippi, 
as  well  as  others. 

4.  The  boundary  line  of  the  State  of  Missouri  and  of  the  city  of  St. 
I.ouis  is  the  middle  of  themahi  channel  of  that  river,  and  survey  No. 
404  of  school  lands  of  St.  Louis,  covering  Duncan's  Island,  was 
rightfully  made,  though  the  island  was  made  land  since  the  grant  of 
these  lands  for  school  purposes  in  1812.  and  since  the  incorporation 
of  St.  Louis  as  a  town. 

This  is  a  writ  of  error  to'the  (■ircuit  Court  for  District  of  I\Iis- 
souri.     Tiie  facts  are  sufficiently  stated  in  the  opinion. 
Mr.  G((re,srh(-  and  Mr.  Blair  for  {ilaintiff  in  error. 
Mr.  Garctt  i'or  defendant. 

Mr.  .IrsTicK  Catkox  delivered  the  opinion  of  the  court. 

Soulard  sued  Jones  to  recover  the  nf)rtbern  part  of  a  United 
States  survey  of  land  laid  ofl"  for  the  St.  Louis  schools.  The  ))art 
sued  for  fronts  the  Mississippi,  and  includes  a  sand-bar,  formerly 
covered  with  water  when  the  cliannel  of  the  river  was  filled  to  a 
navigaVile  stai^e.  Tiie  land  is  included  in  the  survey  approved 
June  loth,  1843,  designating  the  school  lands,  and  the  coiitro- 
versy  would  be  governed  beyond  dispute  by  the  princiides  declared 
in  the  case  of  Kissell  v.  St.  Louis  Puhlir  ScfmoJs  (18  How.),  had  this 
been  fast  land  in  1812.  when  tlie  grant  to  the  schools  was  made. 
But  it  is  insisted  that  the  title  to  tins  accretion  within  the  ]\liss- 
issippi  river  did  not  pass  by  tlie  act  of  1812,  and  remained  in  the 
United  States  till  the  State  of  INIissouri  became  one  of  the  States 
of  the  Union  in  1820.  when  the  title  vested  in  the  State  as  a 
sovereign  right  to  land  lying  below  ordinary  high-water  mark. 
And  furthermore,  that  if  the  State  did  not  take  bj-  force  of  her 
sovereign  right,  she  acquired  a  good  title  to  the  land  known  as 
Duncan's  Island  by  the  act  of  Congress  to  reclaim  swamp  lands. 
These  claims  the  State  conveyed  by  a  statute  to  the  city  of  St. 

34 


530  Jones  n.  Soulard. 

Louis,  and  that  corporation  conveyed  them  to  Jones,  tlie  plaintifT 
in  error. 

Soulard  claims  under  the  corporation  of  the  St.  Louis  schools. 
The  school  survey  No.  404  conveys  78.96  acres,  including  the  land 
in  controversy. 

The  town  of  St.  Louis  was  incorporated  in  1809  b}^  the  Com- 
mon Pleas  Court  of  St.  Louis  county  in  conformity  to  an  act  of 
the  territorial  legislature  passed  in  1808.  and  the  only  contested 
question  in  the  cause  is  whether  the  eastern  line  of  the  copora- 
tion  extends  to  the  middle  thread  of  the  Mississippi  river,  or  is 
limited  to  the  bank  of  the  channel.  The  calls  for  boundary  in 
the  charter  are,  "  beginning  at  Antoine  Roy's  mill  on  the  bank  of 
the  Mississippi ;  thence  running  sixty  arpens  west ;  thence  south 
on  said  line  of  sixty  arpens  in  the  rear,  until  the  same  comes  to 
the  Barrieu  Donoyer ;  thence  due  south  until  it  comes  to  the 
Sugar  Loaf;  thence  due  east  to  the  Mississippi ;  from  thence  by 
the  Mississippi  to  the  place  first  mentioned." 

The  expression  used  in  designating  boundarj^  on  the  closing 
line  in  the  charter  is  as  apt  to  confer  riparian  rights  on  the  proprie- 
tor of  the  tract  of  seventy-nine  acres  as  the  call  could  be,  unless 
the  last  call  had  been  for  the  middle  of  the  river. 

Many  authorities  resting  on  adjudged  cases  have  been  adduced 
to  us  in  the  printed  argument  presented  hj  the  counsel  of  the 
defendant  in  error,  to  show  that  from  the  da^^s  of  Sir  Matthew 
Hale  to  the  present  time,  all  grants  of  land  bounded  by  fresh- 
water rivers,  where  the  expressions  designating  the  water  line 
are  general,  confer  the  proprietorship  on  the  grantee  to  the  middle 
thread  of  the  stream,  and  entitle  him  to  the  accretion.  We  think 
this  as  a  general  rule  too  well  settled  as  part  of  the  American 
and  English  law  of  real  property  to  be  open  to  discussion  ;  and 
the  inquiry  here  is  whether  the  rule  applies  to  so  great  and  public 
a  water  course  as  the  Mississippi  is  at  the  city  of  St.  Louis  ?  The 
land  grant  to  which  the  accretion  attached  has  nothing  peculiar 
in  it  to  form  an  exemption  from  the  rule  ;  it  is  an  irregular  piece 
of  land  of  seventy -nine  acres,  found  vacant  by  the  surveyor  gen- 
eral, and  surveyed  by  him  as  a  school  lot  in  conformitj^  to  the 
act  of  1812.   ■ 

The  doctrine  that  on  rivers  where  the  tide  ebbs  and  flows  grants 
of  land  are  bounded  by  ordinary  high-water  mark  has  no  application 
in  this  case  ;  nor  does  the  size  of  the  river  alter  the  rule.  To  hold 
that  it  did  would  be  a  dangerous  tampering  with  riparian  rights. 


Bates  v.  Railroad  Company.  531 

involving  litigation  concerning  the  size  of  rivers  as  matter  of  fact, 
rather  than  })roceeding^n  established  principles  of  law. 

1.  AVe  are  of  the  o[>inion  that  the  city  charter  of  .St.  Louis,  of 
1809,  extends  to  the  eastern  boundary  of  the  State  of  Missouri 
in  the  middle  of  the  river  Mississippi.  {Dordsfon  v.  Payne.  2 
Smith's  Leading  Cases,  225.) 

2.  That  Duncan's  entry  set  up  in  defense  in  the  court  below  is 
void,  as  this  court  held  in  the  case  of  Kissell  v.  The  St.  Louis 
Schools,  (18  How.) 

3.  That  the  school  corporation  held  the  land  in  dispute,  with 
power  to  sell  and  convey  the  same  in  fee  to  the  defendant  in  error, 
Soulard,  in  execution  of  their  trust. 

It  is  ordered  that  the  judgment  of  the  circuit  court  be 

Affirmed. 


George  C.  Bates,  plaintitf  in  error,  v.  The  Illinois  Central 
Railroad  Company. 

December  Term,  1861.— 1  Black,  204;  4  Miller,  437. 

Eipurian  Eights — Boundaries. 

1.  The  survey  and  plat  by  which  the  United  States  sold  the  land  under 

whicli  plaintiff  claims,  showed  the  east  boundary  to  be  the  lake,  and 
the  south  boundary,  the  Cliicago  river.  The  plat  represents  the 
Chicago  river  as  running  about  due  east  with  the  lake.  In  point  of 
fact,  when  this  suiwey  was  made,  this  was  an  artificial  channel.  The 
main  channel  diverged  southwardly,  and  entered  the  lake  at  a  dif- 
ferent point,  making  a  sand  bar,  which  is  the  subject  of  the  pi-esent 
contest.  Hild.,  that  the  grantee  is  bound  by  the  survey  and  map  as 
to  the  quantities  specified  in  his  patent,  and  acquired  no  claim  to  the 
sand  bar  in  question. 

2.  The  government   of  the   United   States   has   the   right,   tlirough   its 

officers,  to  determine  the  boundaries  by  which  it  sells  or  grants  its 
lands,  and  a  purchaser  is  bound  by  descriptive  calls,  surveys,  and 
plats,  designating  what  he  buys. 

3.  It  was  properly  left  to  the  jury  to  say  whether,  at  the  date  of  the  acts 

under  wliich  plaintift  claims,  the  land  in  controversy  was  within  the 
boundaries  by  which  he  purchased. 
4.  This  sand  bar  did  not  exist  at  the  date  of  this  suit,  but  had  been 
washed  away,  and  was  land  under  water  permanently,  over  which 
the  defendant's  railroad  was  carried  ;  and  the  question  of  the  plain- 
tiff's loss  by  this  washing  away  of  the  sand  bar,  though  much  dis- 
cussed, had  no  application,  since  the  jmy  decided  that  he  never 
owned  it. 


532  Bates  v.  IIailroad  Company. 

WiuT  OK  EKi!(ji{  to  the  Circuit  Court  for  the  Northeru  District 
of  Illinois.     The  case  is  stated  in  the  opinion. 
Mr.  Wclh  for  plaintiff. 
Mr.  Joy  and  Mr.  Noyes  for  defendant. 

]Mu.  Justice  Catron  delivered  the  opinion  of  the  court. 

This  cause  comes  here  by  writ  of  error  to  the  Circuit  Court  of 
the  United  States  for  the  Northern  District  of  Illinois.  The  rail- 
road company  is  sued  in  ejectment  by  Kinzie's  representatives, 
for  land  lying  under  water  at  the  city  of  Chicago — the  end  of  the 
road  running  into  Lake  JNIichigan.  The  controversy  depends  on 
the  following  charge  of  the  court  to  the  jury  : 

•'By  the  act  of  Congress  of  July  1.  1836.  entries  of  the  charac- 
ter of  Kinzie's  were  confirmed,  and  i^atents  were  to  be  issued 
therefor,  as  in  other  cases.  A  patent  accordingly  issued  to  Kinzie 
on  the  nth  of  March.  1837.  There  can  be  no  reasonable  doubt.  I 
think,  that  this  title,  thus  perfected,  related  back  to  the  entry  of 
Kinzie.  in  May.  1831.  and  the  law  gave  it  effect  from  that  date 
precisely  as  if  it  had  been  made  in  the  proper  land  office. 

"The  land  had  been  surveyed  in  1821.  and  on  the  plat  of  the 
government  survey,  the  north  fraction  of  section  10  is  represented 
as  having  the  Chicago  river  on  the  south,  and  Lake  Michigan  on 
the  east.  The  river  is  represented  as  flowing  out  in  nearly  a 
straight  line  into  the  lake.  The  fact  seems  to  be  that  from  1816 
to  1821.  the  river,  instead  of  flowing  out,  as  represented  on  the 
survey,  just  before  it  entered  the  lake,  made  a  sharp  curve  to  the 
south,  and  thereb}*  formed  a  sand  bar  or  spit  of  land  between  it 
and  the  lake,  which  has  given  rise  to  this  controvers}'.  This  sand 
bar  existed  in  1821,  but  it  is  not  noticed  in  the  plat  of  the  survey. 
In  1821.  the  river  seems  to  have  run  into  the  lake,  according  to 
the  plat,  but  it  is  said  this  was  in  consequence  of  an  artificial 
channel  cut  through  the  sand  bar.  This  channel  was  stopped  up 
in  the  winter  of  1821-2,  luit  was  opened  again  in  the  spring  of 
1822  by  a  freshet,  and  water  continued  to  flow  out  there  in  the 
summer  of  1822;  but  during  1821  and  1822,  more  or  less  water 
passed  from  what  had  been  the  mouth  prior  to  1821.  After  1822, 
the  direct  channel  was  stopped  u\).  and,  with  an  occasional  excep- 
tion, caused  by  the  act  of  man.  or  by  a  freshet,  the  river  flowed 
into  the  lake  up  to  1833,  in  its  original  and  natural  bed.  In  1833 
and  in  1834.  the  government  constructed  piers  across  the  sand 
bar,  and  the  river,  from  that  time,  has  flowed  through  those  ])iers, 


Bates  v.  Railroad  Company.  533 

the  old  cliaiiael  south  of  the  pier  havinij-  ceased  to  bear  the  waters 
to  tlie  lake,  because  the  south  pier  was  run  across  it,  as  well  as 
across  the  sand  bar.  In  the  con.struction  of  the  piers,  the  gov- 
ernment of  the  United  States  did  not  purchase  or  condemn  the 
land,  but  Kinzie  seems  to  have  acquiesced  in  the  act ;  and,  indeed, 
as  already  stated,  it  was  not  till  1836  that  Kinzie's  title  was  con- 
firmed." 

An  excei)tion  was  taken  to  the  concluding  part  of  the  charge, 
which  is  as  follows  : 

••  Under  this  state  of  facts,  the  substantial  truths  of  which  are 
not  denied,  the  land  of  Kinzie,  covered  by  his  entry  and  piirchase, 
would  be  the  tract  within  the  following  boundaries  as  they  existed 
at  the  time  of  the  entry,  (there  being  no  question  made,  but  that 
the  government  plats  by  which  sales  were  made  show  that  the- 
whole  land  north  of  the  river  and  south  of  the  north  line  of  the 
fraction  was  sold  as  one  parcel),  and  are  the  north  line  and  west 
line  of  fractional  section  10,  according  to  the  puV)lic  survey,  and 
the  Chicago  river  and  Lake  Michigan,  as  they  existed — that  is. 
it  would  include  all  the  dry,  firm  land  there  was  at  that  time  be- 
tween the  west  line  of  the  section  and  the  lake  and  the  north  line 
of  the  section  and  the  river.  The  river,  the  lake,  and  the  two 
lines  of  the  fractional  section  10  constituted  the  boundaries. 
Whether  the  land  in  controversy  was  within  these  boundaries  is 
a  fact  to  be  found  by  the  jury,  depending  upon  the  evidence  before 
them." 

The  facts  as  recited  were  not  disputed,  nor  is  any  exception 
taken  to  the  statement  made  preceding  the  court's  conclusion  on 
the  law  and  facts  of  the  (;ase. 

The  land  trespassed  on  and  sued  for.  as  described  in  the  plain- 
tift"s  declaration,  lies  south  of  the  south  pier,  is  now  covered  with 
water,  and  part  of  the  bottom  of  the  lake  ;  on  which  land  the  end 
of  the  railroad  is  located.  It  was  formerly  overlaid  with  the  sand- 
l)ar.  which  was  swept  away  by  the  current  the  piers  created.  It 
is  situated  outside  of  fractional  section  10,  as  its  bojuudary  was 
described  bj^the  judge  to  the  jury.  And  this  raises  the  question. 
l)y  what  rule  is  the  public  survey  to  which  the  patent  refers  for 
identity  to  be  construed?  The  land  granted  is  102.29  acres,  lying 
north  of  the  Chicago  river,  bounded  by  it  on  the  south  and  by  the 
lake  on  the  east.  The  mouth  of  the  river  being  found,  establishes 
the  southeast  corner  of  the  tract.  The  plat  of  the  survey  and  a 
call  for  the  mouth  of  the  river  in  the  field-notes  show  that  the 


534  Bates  v.  Railroad  Company. 

survey  made  in  1821  recognized  the  entrance  of  the  river  into  the 
lake  through  the  sand-bar  in  an  almost  direct  line  easterly,  disre- 
garding the  channel  west  of  the  sand-bar,  where  the  river  most 
usually  flowed  before  the  piers  were  erected.  It  is  immaterial 
where  the  most  usual  mouth  of  the  river  was  in  1821,  nor  whether 
this  northern  mouth  was  occasional  or  the  flow  of  the  water  only 
temporary  at  particular  times,  and  this  flow  produced  to  some 
extent  by  artificial  means  by  a  cut  through  the  bar,  leaving  the 
water  to  wash  out  an  enlarged  channel  in  seasons  of  freshets. 

The  public  had  the  option  to  declare  the  true  mouth  of  the  river 
for  the  purposes  of  a  survey  and  sale  of  the  public  land  ;  and  the 
court  below  properly  left  it  to  the  jury  to  find  whether  land  on 
which  the  railroad  lies  is  within  the  boundary  of  the  tract  sur- 
veyed and  granted.  According  to  the  judge's  construction  of  the 
plat  and  calls  and  the  patent  founded  on  the  survey  the  jury  was 
bound  to  find  for  the  defendant,  and  therefore  this  ruling  was  con- 
clusive of  the  controversy. 

In  regard  to  the  matter  so  much  and  so  ably  discussed  in  the 
argument  here,  as  to  the  rights  of  proprietors  on  the  lake  shore 
where  their  fronts  are  swept  away  by  currents,  and  to  what  extent 
the}'  still  owned  the  laud  covered  with  water,  undoubtedly  theirs 
before  the  decrease  took  place,  we  do  not  feel  ourselves  called  on 
to  decide,  because  this  plaintiff  was  not  the  owner  of  the  land 
sued  for  before  the  decrease  occurred,  and  could  have  no  pro- 
prietary rights  in  the  bottom  of  the  lake.  Before  a  proprietor 
can  set  up  his  claim  to  accretions  and  the  like  he  must  first  show 
that  he  owns  the  shore,  and  if  he  fail  first  to  establish  his  owner- 
ship, judicial  inquiry  respecting  his  rights  in  or  under  the  waters 
adjoining  are  abstractions  and  useless. 

Jnd(jme)d  of  the  circuit  court  affirmed. 


Note. — If  at  the  time  the  land  was  sold  by  the  government,  there  was 
between  the  meander  line  and  the  stream  a  body  of  swamp  or  waste 
land,  or  flats  on  which  timber  and  grass  grew,  and  horses  and  cattle 
coidd  feed,  and  hay  be  cut,  such  land  was  not  embraced  in  the  land 
entered  ;  but  if  when  the  land  was  entered,  the  bank  of  the  river  at  an 
ordinarj'  stage  of  water  reached  the  meander  line,  and  the  land  in  con- 
troversy had  since  been  formed  by  a  receding  of  the  water,  or  by  accre- 
tions to  the  shore  and  bank,  then  it  becomes  the  land  of  the  adjoining 
owner  under  the  entry.     Granger  v.  Swart,  1  Woolworth,  88. 

A  meander  line  of  the  public  surveys  is  prima  facie  a  line  following  the 
windings  of  the  stream,  but  it  may  be  shown  by  parole  that  it  did  not 


Railroad  Company  v.  Schurmeir.  535 

follow  the  stream  ;  1)iit  followed  a  slough,  and  that  there  was  public  laud 
between  the  meander  line  and  the  river  at  the  time  the  survey  was  made. 
In  such  case  the  purchaser  from  the  government  acquires  no  title  to  the 
land  between  the  meander  line  and  the  river,  and  the  government  may 
afterward  survey  such  land  and  sell  it  as  other  public  land  is  sold.  Lam- 
mers  v.  Nisseii,  4  Neb.,  245. 

Tlie  survey  of  a  donation  claim  was  run  as  near  to  a  bar  along  the 
banlv  of- a  river  as  possible,  and  the  river  was  considered  the  boundary  at 
the  time  of  the  sur\'ey.  Held,  that  all  alluvion  subsequently  formed 
belong  to  the  donation  property.     Stephemon  v.  Gcjf,  10  Eob.  (La.),  99. 

A  purchaser  of  an  island  from  the  government,  acquires  no  title  to  the 
land  between  high  anil  low  water  mark.  Haight  v.  Citii  of  Keokuk^  4 
Iowa,  199;  Tomlin  v.  D.  B.  and  Miss.  R.  E.  Co.,  32  Iowa.  106. 


RaILKOAD   C()3IPANY    c.   ScnrKMKiK. 
December  Term,  1S6S. — 7  Wallace.  272. 

The  meander  lines  run  in  surveying  fractional  portions  of  the  public 
lands- bordering  upon  na-\agable  rivers,  are  run,  not  as  boundaries  of 
the  tract,  but,  for  the  purpose  of  defining  the  sinuosities  of  the  banks 
of  the  stream,  and  as  the  means  of  ascertaining  the  quantity  of  the 
land  in  the  fraction,  and  which  is  to  be  paid  for  by  the  purchaser. 

Congress  in  providing,  as  it  does,  in  one  or  more  acts  relating  to  the 
survey  and  sale  of  public  lands  bordering  upon  rivers — that  naviga- 
ble rivers,  within  the  territory  to  be  surveyed,  should  be  deemed  to 
be  public  highways,  and  that  where  the  opposite  banks  of  any  stream 
not  navigable,  should  belong  to  different  persons,  the  stream  and 
the  bed  thereof,  should  become  common  to  both  ;  meant  to  enact 
that  the  common  law  rules  of  riparian  ownership  should  apply  in  the 
latter  case,  but  tliat  the  title  to  lands  bordering  on  navigable  streams 
should  stop  at  the  stream,  and  not  come  to  the  Medium Jihim. 

But  such  riparian  proprietors  have  the  same  right  to  construct  suitable 
landings  and  wharves,  for  the  convenience  of  commerce  and  naviga- 
tion, as  riparian  proprietors  on  navigable  waters,  aft'ected  bj^  the  ebb 
and  flow  of  the  tide. 

A  government  grant  of  land  in  Minnesota  (9.28  acres),  bounded  on  one 
side  by  the  Mississippi,  was  held  to  include  a  parcel  (2,78  acres),  four 
feet  lower  than  the  main  body,  and  which,  at  very  low  water  was 
separated  from  it  by  a  slough  or  channel  twenty-eight  feet  wide, 
through  which  no  water  flowed,  but  in  wliich  water  remained  in 
pools ;  where,  at  mediam  water  it  flowed  tlu-ough  the  depression, 
making  an  island  of  tlie  parcel,  and  where,  at  high  water  the  par- 
cel was  submerged  ;  the  whole  place  having  previous  to  the  contro- 


536  Railroad  Company  v.  Schurmeir. 

versy  been  laid  out  a?,  a  city,  and  the  mnnicipal  authorities  liaving 
graded  and  filled  up  the  place  to  the  river  edge  of  the  parcel. 
5.  If,  by  the  laws  in  force  in  Minnesota,  in  1859,  the  recording  of  a  town 
or  city  plot,  indicating  a  dedication  for  a  public  purpose,  of  certain 
parts  of  the  land  laid  out,  operated  as  a  conveyance  in  fee.  to  the 
town  or  city,  yet,  it  could  operate  only  as  a  conveyance  of  the  fee, 
subject  to  the  purpose  indicated  by  the  dedication,  and  subject  to 
that  it  must  be  held  by  any  future  claimant. 

EuiioR  to  the  Supreme  Court  of  Minnesota. 

Schurmeir  filed  a  lull  in  one  of  the  inferior  courts  of  ^linnesota. 
to  enjoin  the  St.  Paul  and  Pacific  Railroad  Company  from  takins: 
possession  and  building  its  railroad  upon  certain  ground  in  the 
city  of  St.  Paul.  Minnesota,  bordering  on  the  IVIississippi.  and 
originally  a  fractional  section  of  the  public  lands.  Tlie  place  was 
alleged  by  Schurmeir  to  be  a  public  street  and  landing. 

The  railroad  company  justified  their  entry  as  owner  in  fee  of 
the  locvs  in  quo.  The  issues  between  the  parties  were  tried  by  a 
referee,  who  found  both  facts  and  law  in  favor  of  Schurmeir.  The 
facts  so  found  being  undisputed,  the  case  was  removed,  for 
decision  on  them,  to  the  (Supreme  Court  of  the  State.  That  court 
affirming  the  referee's  judgment,  the  case  was  here  for  review. 

The  case — to  understand  which  well,  it  is  necessary  to  refer, 
in  a  preliminary  way,  to  certain  statutes  of  the  United  States 
governing  the  surveys  and  descriptions  of  public  lands — was 
thus  : 

Certain  statutes  enact  (act  of  Ma}'  18,  17i)6.  1  Statutes  at 
Large,  446  ;  May  10,  1800,  2  Statutes  at  Large.  73  :  and  February 
11th,  1805.  2  Statutes  at  Large,  -313),  that  the  public  lands  shall 
be  subdivided  into  townships,  sections,  and  quarter-sections,  and 
that  these  subdivisions  shall  be  bounded  by  nortli  and  south  and 
east  and  west  lines,  unless  where  this  is  rendered  impracticable 
hy  meeting  a  navigaMe  water  course,  c^-c.  The  boundaries,  and 
contents  of  the  several  sections  and  quarter-sections,  are  to  be 
ascertained  in  conformity  to  tlie  following  principles  : 

•'The  boundary  line  actually  run,  and  marked  in  the  surveys 
returned,  shall  be  established  as  the  proper  boundary  lines  of 
the  sections  or-  subdivisions  for  which  they  were  intended  ;  and 
the  length  of  such  lines,  as  returned,  shall  be  lield  and  considered 
as  the  true  length  thereof;  and  tlie  boundary  lines  wliich  shall 
not  have  been  actually  run  and  marked  as  aforesaid,  shall  be 
ascertained  by  running  straight  lines  from  the  established  corners 


Railroad  Company  v.  Schurmeir.  537 

to  the  opposite  correspondino;  corners  :  but.  in  those  portions  of 
the  fractional  townships  where  no  snch  opposite  correspondinij 
corners  have  been  or  can  be  fixed,  the  said  bonndary  lines  sliall 
be  ascertained  by  running  from  the  established  corners,  due  north 
and  south  or  east  and  west  lines  (as  the  case  may  be),  to  the  vxiter 
course,  *  *  *  (>)•  other  exteriad  boiituhiry  of  such  fractional 
township." 

There  is  apparently  no  law  which  requires  what  is  hereafter 
spoken  of,  and  called  the  "meandering"  of  watercourses;  but 
the  acts  of  Congress  above  referred  to  do  require  the  contents  of 
each  subdivision  to  be  returned  to,  and  a  jAut  of  the  land  surveyed 
to  be  made  b}'-  the  surveyor  general ;  and  this  makes  necessary 
an  accurate  survey  of  the  meanderings  of  the  water  course,  where 
a  water  course  is  the  external  boundary ;  the  line  showing  the 
place  of  the  water  course,  and  its  sinuosities,  courses,  and  dis- 
tances, is  called  the  "  meander  line."  (See  the  able  opinion  of 
Wilson,  C.  J.,  in  10  Minnesota,  99.  100.  from  which  this  account 
is  extracted.) 

The  original  act  of  17th  May,  1796,  providing  for  the  sale  of 
these  lands,  enacts  that  all  navigable  rivers  within  the  territory 
to  be  disposed  of,  shall  be  deemed  to  be  and  remain  public  high- 
ways ;  and  in  all  cases  where  the  opposite  banks  of  any  stream, 
not  navigable,  shall  belong  to  different  persons,  the  stream  and 
the  bed  thereof  shall  he  common  to  both.  (And  see  act  of  April 
16.  1814,  3  Statutes  at  Large,  125,  as  explained  ])y  act  of  February 
27,  1815,  3  Statutes  at  Large,  218.) 

The  premises  on  which  the  railroad  company  sought  to  enter, 
were   situated  upon   a  fractional   section,  duly  surveyed  b}'  the  ' 
government  surveyor  in  Octo])er,  1847  ;  the  survey  duly  approved 
in  March,  1848.  and  returned  to  the  General  Land  Office. 

This  fractional  section  was  designated  by  this  survey  as  lot  1, 
in  section  5,  township  28  north,  of  range  22  west  of  the  fourth 
principal  meridian.  It  was  represented  by  the  plat  thereof,  as 
bovmded  on  the  north  by  the  east  and  west  sectional  line,  on  the 
west  bythe  north  and  south  sectional  lines,  and  on  the  only  remain- 
ing side  by  the  Mississippi  river.  It  was  this  river  that  inter- 
posed and  made  this  section  a  fractional  one. 


538 


Railroad  Company  v.  Schurmeir. 


At  the  time  of  the  survey  there  was  a  parcel  of  land  (called  by 
the  counsel  on  one  side  a  sand-bar,  reef,  or  "•  tow-head,"  and  by 
the  counsel  on  the  other  an  island)  lying  along  the  shore  of  the 
river,  about  four  feet  lower  than  the  main  land  of  the  fraction, 
and  with  a  channel  or  slough  between  it  and[the  main  land.  This 
depression  was  about  28  feet  wide,  and  the  bar  or  island,  in  its 
extreme  width,  was  about  90  feet.  Its  extreme  length  was  about 
160  feet.  The  main  body  contained  9.28  acres  ;  this  parcel,  2.78 
acres. 

In  high  water  this  parcel  of  land  outside  was'completely  under 
water ;  in  medium  water  it  was  exposed  to  view,|and  the  water 
flowed  through  the  depression  ;  but  at  very  low  water  there  was 
no  jiow  of  water  through  the  depression.  It  lay  in  pools  in  the 
depression.  Very  low  water-mark  was  thus  the  exterior  part  of 
the  bar  or  island,  and  the  landing  place  for  boats  plying  on  the 
Mississippi  had  always  been  the  south"  or  river  side  of  the 
island. 

In  the  government  survey  no  mention  of  or  reference  to  this 
bar  or  island  was  in  any  way  made^^in  the  field  notes,  plat,  or 
map.  The  fractional  parcel,  as  already  said,  was  represented 
as  lying  immediately  upon  and  bounded  by  the  INIississippi 
river. 

The  surveyor,  however,  in  meandering  the  course  of  the  river 
along  the  fraction  ran  the  "meander  lines"  along  the  main  land 
of  the  shore,  and  not  along  the  southerly  line  of  this  bar  or  island, 


Railroad  Company  v.  Schurmeir.  539 

and  thus  did  not  include  the  space  occupied  by  this  depression, 
and  bar  or  island,  in  his  estimate  of  the  quantity  of  land  con- 
tained in  the  fraction. 

The  field  notes  showed  that  the  line  runnin<>-  12. H3  south,  from 
corner  sections  5  and  6.  intersected  the  hank  of  the  Mississippi 
river,  and  that  a  meander  post  was  there  set ;  also,  that  at  a  point 
16.!)()  east  of  said  section  corner,  the  township  line  intersected 
the  left  haul-  of  the  Mississippi  river,  and  that  a  meander  i)ost 
was  there  also  set. 

The  meander  line  was  run.  beginning  at  last-mentioned  meander 
post ;  thence  np  stream,  south  61.  west  6.50  ;  south  54,  west  6.00  ; 
south  46.  west  5.00  ;  south  40,  west  3.06.  to  line  of  sections  5  and 
6,  at  lower  end  of  St.  Paul.'" 

In  March,  184'.),  the  United  States  sold  and  conveyed  the  land 
to  one  Roberts  ;  the  patent  describing  the  lot  (along  with  another 
fractional  section,  styled  No.  2,  not  connected  with  this  case)  as 
containing  so  many  acres,  "  according  to  the  official  plat  of  the 
survey  ; "  a  plat  which,  as  already  said,  did  not  present  the  bar 
or  island  in  any  way,  nor  the  channel  or  slough  between,  but  jire- 
sented  the  river  as  the  boundary. 

In  the  same  spring  Roberts  surveyed,  laid  out.  and  platted  the 
whole  of  this  fractional  parcel  (including  the  bar  or  island  and 
intervening  depression  in  his  plat,  and  as  a  part  of  the  grant  of 
his  patent)  into  towns,  blocks,  lots,  streets,  &c.,  constituting  a 
part  of  the  town  of  St.  Paul,  and  caused  said  plat  to  be  duly 
recorded  :  an  act  which  by  the  laws  of  Wisconsin  (at  that  time  in 
force  in  Minnesota)  operated  to  vest  the  fee  simple  of  every  dona- 
tion or  grant  to  the  public,  or  any  corporation  or  body  politic  in 
it  for  the  uses  therein  iiamed,  and  no  other ;  and  which  declared 
that  •'  land  infeiided  to  be  for  streets,  alleys,  vays.  commons,  or 
other  public  nse,  *  *  *  or  for  any  addition  thereto,  shall  be 
held  in  the  corporate  name  in  trust  to  and  for  the  uses  and  pur- 
poses set  forth  and  expressed  or  intended."  Roberts  subsequently 
sold  to  Schurmeir  two  lots,  designated  on  the  plan  as  lots  Nos.  11 
and  12,  in  block  29.  All  the  space  in  front  of  this  block  and 
between  this  block  and  river  was  designated  as  "  Landing,'"  and 
soon  as  St.  Paul  was  organized  into  a  city  it  exercised  municipal 
control  over  the  space,  established  a  grade,  and  caused  the  place 
to  be  more  or  less  graded,  maintaining  it  was  a  landing.  Schur- 
meir's  two  lots  the  whole  of  and  the  so-called  "landing"  were  sit- 
uated upon  what  had  been  the  slough  or  channel. 


540  Railroad  Company  v.  Schurmeir. 

In  ISoG.  anil  after  this  depression  had  been  filled,  and  the 
whole  space  between  tlie  lots  and  the  river,  inclndino;  the  depres- 
sion and  the  bar  or  island  had  been  graded  by  the  city,  and  traces 
of  both  had  been  effaced,  the  space  originally  occupied  by  this 
bar  or  island  was  surveyed  by  a  government  surveyor,  and  platted 
and  mapped  as  "Island  No.  11,"  in  said  section  5. 

By  virtue  of  this  survey  the  railroad  company  claimed  the  title 
under  a  congressional  land  grant  of  May  22,  1857. 

The  important  question  in  the  case  was  tlierefore  this  :  By  what 
exact  line  was  tl>e^rant  bounded  on  the  river  side  ?     Was  it — 

1.  By  either  th-e  medinmi  jilum  of  t\\Q  Mississippi  or  the  outside 
of  the  sand  bar  or  island  ?     Or  was  it — 

2.  By  the  meander  lines  run  by  the  surveyor  ? 

If  by  either  of  the  former,  the  railroad  company  had  no  right. 

If  by  the  latter,  Schurmeir  had  none. 

A  minor  question  was  whether — supposing  Roberts  to  have 
owned  the  parcel  originally — he  had  or  had  not,  under  the  statutes 
then  in  force  in  Minnesota,  divested  himself  of  such  right  by  record- 
ing his  town  plot  ? 

Mr.  T.  A.  Hendricks  for  the  railroad  company,  plaintiff  in  eri'or. 

The  land  system  of  the  United  States  was  designed  to  provide, 
in  advance,  with  mathematical  precision,  the  ascertainment  of 
boundaries.  The  purchaser  takes  by  metes  and  bounds.  These 
rules  are  settled,  and  accordingl}^  the  township  line  at  the  north, 
the  section  line  at  the  west,  and  the  meander  line  on  the  remain- 
ing side — a  line  beginning  and  ending  at  posts,  and  running  by 
courses,  described  between  them — must  constitute  the  boundar}'^ 
here.  In  no  other  way  can  the  rules  be  conformed  to.  By  the 
pretensions  of  the  opposite  counsel,  the  purchaser  would  pay  for 
a  little  more  than  nine  acres,  and  get  but  little  less  than 
twelve.  The  lines  marked  on  the  ground  must  thus  control. 
{Bates  V.'  Railroad  Crrmpany,  1  Black,  204;  Walker  v.  Smith,  2 
Pennsylvania  State,  43 ;  Yotinkin  v.  Cowan,  34  Fennsjdvania 
State,    198  ;  Hall  v.  Tanner,  4  Pennsylvania  State,  244.) 

But.  admit  that  the  land  comes  to  the  bank  edge.  This  is  the 
most  the  other  side  can  pretend,  for  the  pretension  of  carrying  the 
grant  to  the  middle  line  of  a  vast  river,  is  untenable  in  our  country 
even  at  common  law.  {Carson  v.  Blazer,  2  Binney,  475  ;  Btdlock 
V.  Wilson.  2  Porter,  (Alal)ama),  436  ;  People  v.  Canal  Appraisers, 
33  New  York,  461  ;   Me  Manns  v.  Carmichael,  3  Clark,  (Iowa).  1), 


Railroad  Company  v.  Sciiurmeir.  541 

and  plainly  in  the  face  of  the  statute  of  May  17.  1796.  and  otlier 
statutes.  What,  then,  is  the  bank  of  a  river!:'  It  is  deeide<l  in 
Pennsylvania,  {MrCoIkmgh  v.  Wuvnriglit,  2  Harris,  171  ;  and  see 
Stover  V.  Freeman,  6  IMassachu.setts,  435  ;  and  Lewen  v.  Smith.  7 
Porter.  (Alabama).  428).  to  be  "  the  continuous  inar<rin.  where  vetje- 
tation  ceases." 

The  .shore  is.  on  tlie  other  hand,  decided  to  be  "  the  pe))bly. 
sandy,  or  rocky  space  between  that  and  low  water  mark."  This 
island,  when  it  was  an  island,  and  not  the  bottom  of  the  rivei-.  was 
four  feet  below  the  ])ank.  When  in  the  condition  most  favorable 
to  the  case  of  the  other  side,  it  was  ■'  sandy  space,"  between  rerf/ 
low  water-mark  and  the  bank  :  not  bank,  but  shore. 

In  fact,  however,  it  was  not  rightly  considered  even  shore. 

In  one  condition  of  the  river,  it  was  river  l)ottora  :  in  another, 
the  ordinary  condition,  an  island  in  the  river  :  and  only  in  a  third, 
and  rare  condition,  "very  low  water.*'  did  it  ajiproach  even  the 
character  of  shore. 

We  maj^  add,  that  Roberts,  by  iiis  dedication  of  the  land  for  a 
landing,  parted  with  his  propert3\  and  that  his  grantee.  Schurnieir. 
has  no  title  in  it.  an  cannot  now  restrain  tiie  railroad  from  enter- 
ing on  it. 

Mr.  All  is  contra. 

1.  The  meander  lines  are  not  boundaries.  They  are  not  even 
known  to  the  laws  or  acts  of  Congress.  The  term  '•  meander"  is  sim- 
X)]y  used  to  designate  certain  lines,  run  by  the  surveyors,  along  the 
windings  of  water-courses,  bounding  fractions,  for  the  purpose  of 
ascertaining  and  returning  the  quantity  of  land  in  such  fractions. 

There  is  no  provision  in  the  acts  of  Congress  for  meandering  a 
water-course,  or  running  any  line  along  its  bank.  But  the  (jvantity 
of  land  in  a  fraction  must  ])e  returned  ;  hence,  alone,  the  surveyor 
runs  lines  along  the  bank. 

2.  If  the  surveyor  make  an  error  in  his  return,  as  to  tlie  quan- 
tit^^  of  the  land,  or  if  the  quantity  is  eiToneously  stated  in  the 
patent,  this  will  not  affect  the  grant.  The  grantee  will  take  accor- 
ding to  the  boundaries  of  the  land  ilescribed.  {LiiirLsei/  v.  Haices. 
2  black,  554.) 

3.  Whether  the  grant  extends  to  the  medimn  Jilum  of  the  river, 
is  a  point  not  in  the  least  necessary  to  be  considered — though  we 
believe  it  does.  IMost  of  the  authorities  which  would  deny  this 
l)roi)osition.  concede  tiiat  tiie  riparian   owner  takes  to  loir  luater 


542  Railroad  Company  v.  Schurmeir. 

mark.     {Doi'aston  v.    Payne,  2  Smith's  Leading  Cases,    224-6.) 
That  is  all  that  we  need  maintain. 

4.  The  record  of  the  town  plot  did  not  make  a  dedication  of 
land  intended  for  "  streets,  alleys,  ways,  commons,  or  other  pub- 
lic uses,"  equivalent  to  a  grant  in  fee,  whatever  it  might  do  by  a 
"donation  or  grant"  marked  on  the  i)lat.  Even  if  the  plot  did 
so  make  it,  the  town  was  bound  to  hold  it  for  the  puri)ose  speci- 
fied  in  tliis  case  a  '•  landing  "' — and  Schurmeir,  if  interested  as  a 

citizen,  might  file  his  bill. 

Mr.  Justice  Clifford  delivered  the  opinion  of  the  court. 

Complainant  alleged  that  he  was  the  owner  in  fee,  and  in  the 
actual  possession  of  the  real  estate  described  in  the  bill  of  com- 
plaint, together  with  the  stone  warehouse  thereon  erected.  As 
described,  the  premises  are  situated  in  the  city  of  St.  Paul,  county 
of  Ramsey,  and  State  of  Minnesota,  and  the  allegation  is,  that 
the  lot  extends  to  and  adjoins  the  public  street  and  levee  which 
run  along  the  left  bank  of  the  Mississippi  river,  in  front  of  that 
city ;  that  the  said  street  and  levee  constitute  the  public  landing 
for  all  steamboats  and  other  vessels  bound  to  that  port,  and 
the  place  where  all  such  vessels  receive  and  discharge  their 
freight  and  passengers  ;  that  the  street,  levee  and  public  landing 
occupy  the  whole  space  between  this  lot  and  the  bank  of  the 
river,  in  front  of  the  same,  and  that  he  is  the  owner  in  fee  of  that 
whole  space,  subject  to  the  public  right  to  use  and  occupy  the 
same  as  such  street,  levee  and  public  landing. 

Based  upon  these  preliminary  allegations,  the  charge  is,  that 
the  corporation  respondents  were  then  engaged,  without  his 
license  or  consent,  in  extending  and  constructing  their  railroad 
over  and  along  the  said  public  streets,  levee,  and  landing,  in  front 
of  his  premises,  with  the  design  and  purpose  of  running  their 
cars  on  the  same  for  the  transportation  of  freight  and  passengers  ; 
and  the  complainant  alleged  that  the  etfect  would  be.  if  the 
design  and  purpose  of  the  respondents  should  be  carried  out,  that 
the  said  public  street,  levee  and  landing  could  not  be  occupied 
and  used  for  the  purposes  for  wliicii  they  were  constructed,  and 
to  which  they  were  dedicated,  and  that  his  premises  would  be 
rendered  useless  and  valueless. 

Two  defences  were  set  up  by  the  respondents  in  their  answer : 

First.  They  denied  that  the  fee  of  the  land  described  in  the 
bill  of  complaint  as  a  public  street  and  levee,  or  public   landing. 


Railroad  Company  v.  Schurmeir.  543 

was  ever  in  the  cf)ni]ilaint,  or  that  he  ever  had  anj'  right,  title  or 
interest  in  the  land  between  his  premises  and  the  main  channel 
of  the  river. 

Secondly.  They  alleged  that  all  tlie  land  between  the  premises 
of  the  comi)lainant  and  the  river  in  front,  were  part  aiid  parcel  of 
the  lands  surveyed  by  the  United  States,  and  granted  by  the  act 
of  Congress  of  the  3d  of  March,  1857,  to  the  Territory  of  Min- 
nesota, and  that  tliey  were  the  owners  of  the  same  in  fee,  as  tlie 
grantees  of  the  territor}^  and  State,  to  aid  in  the  construction  of 
their  railroad. 

Defence  of  the  other  respondents  is.  that  all  the  acts  charged 
against  them  were  performed  by  the  direction  and  under  the 
author! t}^  of  the  respondent  corporation. 

Prayer  of  the  bill  of  complaint  was  that  the  respondent  might 
be  restrained  from  extending  and  constructing  their  railroad  over 
and  along  said  public  street,  levee,  or  landing,  and  from  obstruct- 
ing and  impeding  the  free  use  of  the  same  by  the  public. 

By  consent  of  parties  it  was  subsequently  ordered  by  the  court 
that  the  cause  be  referred  to  a  sole  referee  to  hear  and  determine 
all  the  issues  in  the  pleadings,  and  that  he  sliould  report  his  de- 
termination to  the  court.  Such  a  report  was  subsequently  made 
by  the  referee,  and  the  record  shows  that  the  court  in  pursuance 
of  the  same  enjoined  the  respondents  as  prayed  in  the  bill  of 
complaint,  and  ordered,  adjudged,  and  decreed  that  the  respond- 
ents should  remove  from  the  street,  levee,  and  landing  in  front  of 
the  complainant's  premises  all  tracks,  trestleworks,  embankments, 
buildings,  and  obstructions  of  every  kind  erected  or  constructed 
thereon  by  them  for  railroad  purposes. 

Appeal  was  taken  by  the  respondents  from  the  decree  as  ren- 
dered in  the  district  court  for  that  county  to  the  Supreme  Court 
of  the  vState,  where  the  decree  was  in  all  things  affirmed,  and  the 
respondents  removed  the  cause  into  this  court  by  a  writ  of  error 
sued  out  under  the  twenty-flftli  section  of  the  Judiciary  Act. 

1.  Express  finding  of  the  referee  was  that  the  premises  in  ques- 
tion were  included  in  that  part  of  section  five,  township  twentj^- 
eight  north,  in  range  twenty -two  west,  of  the  fourth  principal 
meridian,  which  is  situated  on  the  north  side  of  the  center  line 
of  the  Mississippi  river.  He  also  found  that  the  survey  of  that 
part  of  section  five  was  made  by  the  deputy  surve^'or  October  27, 
1847  :  that  the  field-notes  of  the  survey  were  dulj^  communicated 
to  the  surveyor  general,  and  that  the  latter  officer,  on  the  15th  of 


544  Railroad  Company  v.  Schurmeir, 

March  following,  duly  approved  the  survey  as  made  by  the  deputy 
survej'or.  Same  report  also  shows  that  a  plat  of  that  part  of 
section  five  was  duly  prepared  and  certified  by  the  surveyor  gen- 
eral on  the  same  day.  and  that  it  was  duly  transmitted  to  the  land 
otflce  of  the  district  where  the  land  was  situated. 

By  that  plat  it  appears  that  tlie  land  as  surveyed  consisted  of 
two  separate  parcels,  called  lots  1  and  2.  in  the  report  of  the 
referee,  exhibited  in  the  record.  Lot  1.  the  tract  in  question,  is 
situated  in  the  northwest  corner  of  the  section,  and  contains  the 
quantity  of  land  described  in  tlie  official  survey  and  plat.  Par- 
ticular description  of  lot  2  is  unnecessary,  as  it  is  not  in  contro- 
versy in  this  case.  Both  of  those  lots  were  purchased  by  Lewis 
Rolierts.  and  on  the  24th  of  March.  1849.  a  patent  in  due  form  of 
law  was  issued  to  him  for  the  same  by  the  proi)er  officers  of  the 
United  States.  Possessed  of  a  full  title  to  all  the  land  described 
in  the  patent,  the  purchaser  caused  lot  1  to  be  surveyed  and  laid 
out  into  town  blocks,  lots,  streets.  &c.,  as  a  part  of  the  town  of 
St.  Paul :  and  the  finding  of  the  referee  is,  that  the  plat,  as  re- 
corded, describes  the  land  as  extending  to  the  main  channel  of 
the  river.  Block  29,  as  exhibited  on  that  plat,  includes  lots  11 
and  12,  descrilied  in  the  bill  of  complaint,  and  the  report  of  the 
referee  shows  that  they  are  a  part  of  the  triangular  fraction  of 
land  situated  in  the  northwest  corner  of  section  5.  as  delineated 
on  the  official  i)lat. 

Claim  of  complainant  is  to  lots  11  and  12.  in  block  29.  and 
the  finding  of  the  referee  is,  that  he  holds  the  same  through  cer- 
tain mesne  conveyances  from  the  original  grantee  under  the  patent. 

Congress  granted  to  the  Territory  of  Minnesota  b}'  the  act  of 
the  3d  of  March,  1857,  for  the  purpose  of  aiding  in  the  construc- 
tion of  certain  railroads,  every  alternate  section  designated  by 
odd  numbers  for  six  sections  in  width  on  each  side  of  the  respec- 
tive railroads  therein  mentioned  and  their  brandies,  and  the 
respondents  claim  title  to  the  premises  described  in  the  pleadings 
under  that  act  of  Congress  as  the  grantees  of  the  State.  (11 
Stat,  at  Large,  195;  State  Session  Laws.  1857.  70;  Gen.  Laws. 
1858.  9  :  Session  Laws,  1862.  226.) 

Title  claimed  by  the  complainant,  being  of  prior  date  to  that 
set  up  by  the  respondents,  will  be  first  examined,  because,  if  it  be 
sustained  as  including  the  premises  in  controversy,  an  examina- 
tion of  the  title  of  the  respondents  will  not  be  necessary. 

Since  the  town  of  St.  Paul  was  organized  under  her  city  charter. 


Railroad  Company  v.  Schurmeir.  545 

passed  March  4.  18r)4,  the  city  government  has  exercised  munici- 
pal autliority  and  control  over  the  entire  parcel  of  land  lyinsr  be- 
tween the  main  channel  of  the  river  and  block  twenty-nine,  where 
the  comphiin ant's  warelionse  is  situated.  Cbiiming  entire  control 
over  the  premises  as  a  street,  levee,  or  landing,  the  city  authori- 
ties have  established  a  grade  for  the  same,  and.  long  before  any 
attempt  was  made  by  the  respondents  to  controvert  the  title  of 
the  complainant,  tiiey  had  made  large  progress  in  the  work  of 
reducing  the  surface  of  tlie  land  to  the  established  grade. 

Appellants  contend  that  the  river  is  not  a  boundary  in  the 
-official  survey  ;  that  the  tract,  as  surveyed,  did  not  extend  to  the 
river,  but  that  the  survey  stopped  at  the  meander  posts  and  the 
descrilied  trees  on  the  bank  of  the  river. 

Accordingly,  tliey  insist  that  lot  1  did  not  extend  to  the  river, 
but  only  to  the  points  where  the  township  and  section  lines  inter- 
sect the  left  bank  of  the  river,  as  shown  by  the  meander  posts. 

The  finding  of  the  referee  also  shows  that  tlie  meander  line  of 
lot  1  was  run  in  the  official  survey  along  the  left  or  north  bank  of 
a  channel  which  then  existed  between  that  bank  and  a  certain 
parcel  of  land  in  front  of  the  same,  afterwards  designated  as 
Island  11.  but  which  was  not  mentioned  in  the  field  notes  of  the 
official  survey,  nor  delineated  on  the  official  plat. 

Conceded  facts  is,  that  those  field  notes  constituted  the  foiuid- 
ation  of  the  official  plat,  and  that  tliat  plat  was  the  only  one  in 
the  local  land  office  at  the  time  the  patent  was  issued  under  wliich 
the  appellee  claims.  When  the  water  in  the  river  was  at  a  medium 
height,  there  was  a  current  in  the  channel,  between  what  is  called 
the  island  and  the  :»ank,  where  the  meander  posts  were  located, 
but  when  the  water  was  low,  there  was  no  current  in  that  channel, 
and,  when  the  water  was  very  high  in  the  river,  the  entire  parcel 
of  land  designated  as  the  island  was  completely  inundated. 

No  mention  is  made  of  any  such  channel  in  the  official  survey 
under  which  the  patent  was  issued  ;  but  the  deputy  surveyor, 
under  the  instructions  of  the  land  oflace.  on  the  13th  of  March 
IHoS.  made  a  new  survey  of  the  parcel  of  land  lying  between  that 
channel  and  the  main  channel  of  the  river,  and  the  field  notes  of 
the  same  were  subsequently  approved  by  the  surveyor  general. 
Duplicates  of  that  survey  were  communicated  to  the  General 
Land  Office,  and  the  finding  of  the  referee  shows  that  the  plat 
exhibits  the  true  relation  which  that  tract  bears  to  lot  1  in  that 
section. 

35 


546  Railroad  Company  v.  Schurmeir. 

Prior  to  that  survey,  however,  the  city  of  St.  Paul  had  filled  the 
channel,  and  reclaimed  the  land  at  the  west  end  of  the  same,  and 
extended  the  grade  of  the  street  and  levee  or  landing  entirely 
across  the  island  to  the  main  channel  of  the  river.  Besides,  the 
uncontradicted  fact  is  that  the  landing  for  boats  and  vessels, 
touching  at  that  port,  was  always  on  the  river  side  of  the  island, 
and  the  finding  of  the  referee  shows  that  the  front  wall  of  the 
complainant's  warehouse  is  not  more  than  four  feet  north  of  the 
southerly  line  of  the  lot  on  which  it  is  erected. 

Surveyors  were  directed  by  the  act  of  Congress  of  the  20th  of 
May,  1785.  to  divide  the  territory,  ceded  by  individual  States, 
into  townships  of  six  miles  square,  by  lines  running  due  north  and 
soutli,  and  others  crossing  these  at  right  angles,  *  *  *  * 
"unless  where  the  boundaries  of  the  tracts  purchased  from  the 
Indians  rendered  the  same  impracticable."     (1  Land  Laws,  19.) 

Congress  preserved  the  same  system  also  in  the  act  of  the  18th 
of  May,  1 796,  in  respect  of  the  survey  and  sale  of  the  lands 
northwest  of  the  Ohio  river,  but  the  latter  act  recognizes  two 
other  necessary  exceptions  to  the  general  rule.  (1  Stats,  at 
Large,  464.) 

Public  lands  therein  described  were  required  to  be  divided  by 
north  and  south  lines  running  according  to  the  true  meridian,  and 
others  crossing  them  by  right  angles,  so  as  to  form  townships  of 
six  miles  square,  "unless  where  the  line  of  the  late  Indian  pur- 
chase, or  of  the  tracts  of  land  heretofore  surveyed  or  patented, 
or  the  coarse  of  navigable  rivers  may  render  it  impracticable. 

By  the  ninth  section  of  that  act  it  is  provided  that  all  navigable 
rivers  within  the  territory  mentioned  in  that  act,  should  be  deemed 
to  be  and  remain  public  highways,  and  that,  in  all  cases  where 
the  o{)posite  banks  of  any  stream,  not  navigable,  shall  belong  to 
different  persons,  the  stream  and  the  bed  thereof  should  become 
common  to  both.     (1  Stat,  at  Large,  468.) 

Provision  was  made  by  the  act  of  February  11,  1805,  that 
townships  should  be  subdivided  into  sections,  by  running  straight 
lines  from  the  mile  corners,  marked  as  therein  required,  to  the 
opposite  corresponding  corners,  and  by  marking  on  each  of  the 
said  lines  intermediate  corners,  as  nearly  as  possible  equidistant 
from  the  corners  of  the  sections  on  the  same. 

Corners  thus  marked  in  the  surveys  are  to  be  regarded  as  the 
proper  corners  of  sections,  and  the  provision  is  that  the  corners 
of  half  and  quarter-sections,  not  actually  run  and  marked  on  the 


Railroad  Company  v.  Schurmeir.  547 

surveys,  shall  be  placed,  as  nearly  as  possible,  equidistant  from 
the  two  corners  standing  on  the  same  line.    (2  Stat,  at  Large,  313.) 

Boundary  lines  actually  run  and  marked  on  the  surve3'-s 
returned,  are  made  the  proper  boundary  lines  of  the  sections  or 
subdivisions  for  which  the}^  were  intended.  And  the  second 
article  of  the  second  section  provides  that  the  length  of  such 
lines,  as  returned,  shall  be  held  and  considered  as  the  true  length 
thereof.  Lines  intended  as  boundaries,  but  which  were  not 
actually  run  and  marked,  must  be  ascertained  by  runnino-  straio-ht 
lines  from  the  established  corners  to  the  opposite  corresponding 
corners  ;  but  where  no  such  opposite  corresponding  corners  have 
been  or  can  be  fixed,  the  boundary  lines  are  required  to  be  ascer- 
tained by  running  from  the  established  corners  due  north  and 
south,  or  east  and  west,  as  the  case  may  be,  to  the  water  course 
Indian  boundary  line,  or  other  external  boundary  of  such  frac- 
tional township. 

Express  decision  of  the  Supreme  Court  of  the  State  was,  that 
the  river  is,  in  this  case,  and  not  the  meander  line,  is  the  west 
boundary  of  the  lot,  and  in  that  conclusion  of  the  State  court  we 
entirely  concur.     {Schurmeir  v.  The  Kailroad.  10  Minnesota,  82.) 

INIeander  lines  are  run  in  surveying  fractional  portions  of  the 
public  lands  bordering  upon  navigable  rivers,  not  as  boundaries 
of  the  tract,  but  for  the  purpose  of  defining  the  sinuosities  of  the 
bank  of  the  stream,  and  as  the  means  of  ascertaining  the  quantity 
of  the  land  in  the  fraction  subject  to  sale,  and  which  is  to  be  paid 
for  by  the  purchaser. 

In  preparing  the  ofBcial  plat  from  the  field  notes,  the  meander 
line  is  represented  as  the  border  line  of  the  stream,  and  shows, 
to  a  demonstration,  that  the  water  course,  and  not  the  meander 
line,  as  actually  run  on  the  land,  is  the  boundary. 

Proprietors  bordering  on  streams  not  navigable,  unless  restricted 
by  the  terms  of  their  grant,  hold  to  the  centre  of  the  stream  ;  but 
the  better  opinion  is,  that  proprietors  of  lands  bordering  on 
navigable  rivers,  under  titles  derived  from  the  United  States,  hold 
only  to  the  stream,  as  the  express  provision  is,  that  all  such  rivers 
shall  be  deemed  to  be  and  remain  public  highways. 

Grants  of  land  bounded  on  rivers  above  tide  water,  says  Chan- 
cellor Kent,  carry  the  exclusive  right  and  title  of  the  grantee  to 
the  centre  of  the  stream,  unless  the  terms  of  the  grant  clearly 
denote  the  intention  to  stop  at  the  edge  or  margin  of  the  river, 
and  the  public,  in  cases  where  the  river  is  navigable  for  boats  and 


548  Railroad  Company  v.  Sciiurmeir. 

rafts,  have  an  easement  therein,  or  a  riglit  oi"  passage,  subject  to 
the  just  publicum,  as  a  public  highway.  (3  Commentaries.  11th 
ed.,  427.) 

The  views  of  that  commentator  are,  that  it  would  require  an 
express  exception  in  the  grant,  or  some  clear  and  unequivocal 
declaration,  or  certain  and  immemorial  usage,  to  limit  the  title  of 
the  riparian  owner  to  the  edge  of  the  river,  because,  as  the  com- 
mentator insists,  tiie  stream,  when  used  in  a  grant  as  a  bounrlar3\ 
is  used  as  an  entirety  to  the  centre  of  it,  and  he  consequently 
holds  that  the  fee  passes  to  that  extent.  Decided  cases  of  the 
highest  authority  affirm  that  doctrine,  and  it  must,  doubtless,  be 
deemed  correct  in  most  or  all  jurisdictions  where  th«  rules  of 
the  common"  law  prevail,  as  understood  in  the  parent  country. 
Except  in  one  or  two  States,  those  rules  have  been  adopted  in  this 
country,  as  applied  to  rivers  not  navigable,  when  named  in  a 
grant  or  deed  as  a  boundar^^  to  land.  Substantially,  the  same 
rules  are  adopted  by  Congress  as  applied  to  streams  not  navi- 
gable ;  but  many  acts  of  Congress  have  provided  that  all  navi- 
gable rivers  or  streams  in  the  territory  of  the  United  States, 
offered  for  sale,  should  be  deemed  to  be  and  remain  public  high- 
ways. (1  Stat,  at  Large,  491  ;  2  Stat.  ;at  Large,  235.  279,  642, 
B68,  703,  747 ;  3  Stat,  at  Large,  349.)  Irrespective  of  the  acts  of 
Congress,  it  should  be  remarked  that  navigable  waters,  not 
effected  b}'  the  ebb  and  flow  of  the  tide,  such  as  the  great  lakes, 
and  the  Mississippi  river,  were  unknown  to  courts  and  jurists 
when  the  rules  of  the  common  law  were  ordained  ;  and  even  when 
the  learned  commentaries  were  written,  to  which  reference  is 
made,  it  was  still  the  settled  doctrine  of  this  court  that  the  admi- 
ralty had  no  jurisdiction  except  where  the  tide  ebbed  and  flowed. 
(The  Jefferson,  10  Wheaton,  428  :  Genesee  Chief,  12  Howard.  456  ; 
Hine  v.  Trevor,  4  Wallace,  565.) 

Extended  discussion  of  that  topic,  however,  is  unnecessary,  as 
the  court  decides  to  place  the  decision  in  this  case  upon  the  several 
acts  of  Congress,  making  provision  for  the  survey  and  sale  of 
the  public  lands  bordering  on  public  navigable  rivers,  and  the 
legal  construction  of  the  patents  issued  under  such  official  sur- 
veys. 

Such  a  reservation,  in  the  acts  of  Congress,  providing  for  the 
survey  and  sale  of  such  lands,  must  have  the  same  effect  as  it 
would  be  entitled  to  receive  if  it  were  incorporated  into  the  patent, 
especially  as  there  is  nothing  in  the  field  notes,  or  in  the  official 


Railroad  Company  t.-.  Schukmeik.  549 

plat  or  patent,  inconsistent  with  that  exiilicit  reservation.  Kivers 
were  not  regarded  as  navigable  in  the  common  law  sense,  unless 
the  waters  were  effected  by  the  ebb  and  flow  ol"  the  tide  ;  but  it  is 
quite  clear  that  Congress  did  not  employ  the  words  navigable, 
and  not  naviga])le,  in  that  sense,  as  usuall}"  understood  in  legal 
decisions.  On  the  contrary,  it  is  obvious  that  the  words  were 
employed  without  respect  to  the  ebb  and  flow  of  the  tide,  as  they 
were  applied  to  territorj'^  situated  far  above  tide  waters,  and  in 
which  there  were  no  salt  water  streams. 

Viewed  in  the  light  of  these  considerations,  the  court  does  not 
hesitate  to  decide  that  Congress,  in  making  a  distinction  between 
streams  navigable  and  those  not  navigable,  intended  to  provide 
that  the  (Common  law  rules  of  riparian  ownership  should  apply  to 
lands  bordering  on  the  latter,  but  that  the  title  to  lands  bordering 
on  navigable  streams  should  stop  at  the  stream,  and  that  all  such 
streams  should  be  deemed  to  be  and  remain  public  highways. 

Although  such  riparian  proprietors  are  limited  to  the  stream, 
still  they  also  have  the  same  right  to  construct  suitable  landings 
and  wharves,  for  the  convenience  of  commerce  and  navigation,  as 
is  accorded  riparian  proprietors  bordering  on  navigable  waters 
affected  by  the  ebb  and  flow  of  the  tides.  {Button  v.  Strong,  1 
Black,  23.) 

Argument  is  scarcely  necessary  to  show,  in  view  of  the  definite 
regulations  of  Congress  upon  the  subject  of  the  survey  and  sale  of 
the  public  lands,  that  the  second  survey  of  the  space  between  block 
twenty -nine  and  the  main  channel  of  the  river,  cannot  affect  the  title 
of  the  complainant  as  acquired  from  the  United  States  under  the 
antecedent  official  survey  and  sale.  {Lindsey  v.  Hawes,  2  Black, 
554  ;  Bates  v.  Railroad  Company,  1  Black,  204 :  Brown  v.  Clem- 
ents, 3  Hov,'ard,  650.) 

Attempt  is  also  made  to  justify  the  acts  of  the  respondents,  as 
grantees  of  the  State,  upon  the  ground,  that  the  complainant,  in 
dedicating  the  premises  to  the  public  as  a  street,  levee  and  landing, 
parted  with  all  his  title  to  the  same,  and  that  the  entire  title 
vested  in  fee  in  the  State.  Respondents  rely  for  that  purpose 
upon  the  statute  of  the  Territory  of  Wisconsin,  which  was  then 
in  force  in  the  Territor}^  of  Minnesota.  (Statutes  of  Wisconsin 
Territory,  159.) 

Suppose  the  construction  of  that  provision,  as  assumed  by  the 
respondents,  is  correct,  it  is  no  defence  to  the  suit,  because  it  is 
nevertheless  true,  that  the  muncipal  corporation  took  the  title  in 


550  Brush  v.  Ware. 

trust,  impliedly,  if  not  expressly  designated  by  the  acts  of  the 
party  in  making  the  dedication.  They  could  not,  nor  could  the 
State,  convey  to  the  respondents  any  right  to  disregard  the  trust, 
or  to  appropriate  the  premises  to  any  purpose  which  would  render 
valueless  the  adjoining  real  estate  of  the  complainant. 

Considered  in  any  point  of  view,  our  conclusion  is,  that  the 
decree  of  the  State  court  was  correct;  and  the  decision  in  this 
case  also  disposes  of  the  appeal  brought  here  by  the  same  appel- 
lants, from  a  decree  rendered  by  the  Circuit  Court  of  the  United 
States  for  the  District  of  Minnesota,  in  favor  of  George  D.  Hum- 
phreys and  others,  which  was  a  bill  in  equity  against  the  same 

it 

respondent  corporation.  The  appeal  in  that  case  depends  sub- 
stantially upon  the  same  facts,  and  must  be  disposed  of  in  the 
same  way.     Both  decrees  are —  Affirmed. 

Note.— The  same  doctrine  applied  to  a  navigable  lake,  Forsytk  v. 
Small,  1  Bissell.  201  ;  also  see,  St.  Clair  (Jo.  v.  Lovingstoti,  23  Wall.,  46  ; 
and,  Boorman  v.  Suiimichs,  42  Wis.,  23,3. 

The  raeauder  luie  in  the  public  survey  along  the  banks  of  a  river,  is 
not  the  boundary  of  the  lot ;  it  is  merely  to  detei-mine  the  quantity  of 
land  contained  in  it,  the  lot  extends  to  the  center  of  the  stream  imless 
restrained  by  the  terms  of  the  grant.  Jones  v.  Peitihone,  2  Wis.,  308  ; 
Walker  v.  S/iephu)dso/i,  4  Wis.,  48IJ ;  Gavit  v.  Champers,  3  Ohio,  496  ;  Be7i- 
ntr  V.  Platter.  6  Ohio,  o0.5  ;  Canal  Trustees  v-  Havens,  11  111  ,  5.54;  City  of 
Chicago  y.  Lajiiii,  49  111.,  172;  Braxen  v.  Bressler,  64  111,,  488;  Kraiilw. 
Craw/onl,  18  iowa,  .549  ;  Ryan  v.  Brown,  18  Mich..  196  ;  Morgan  v.  Read- 
ing, 8  Sraedes  and  M.  (Miss.),l366  ;  Steamboat  Magnolia  v.  Marshall,  39 
Miss.,  109. 

The  purchaser  takes  to  the  water's  edge,     Wright  v.  l>ay,  33  Wis.,  260. 

The  riparian  owners  on  non-navigable  lakes,  own  to  tlie  center  thread 
of  the  lake.     Ridgway  v.  Ludlou-.  .58  [iid.,  24S. 


Henry    Brush,    appellant,    v.   John    H.    Wakk    and    others, 

appellees. 

January  Term,  1841. — 1.5  Peters,  93  ;  14  Curtis,  34, 

Where  a  patent  is  founded  on  an  assignment  of  a  certificate  of  a  military 
right,  a  court  of  equity  may  inquire  into  an  alleged  fraud  in  that 
assignment,  and  if  found  frandident,  decree  tiic  holder  of  tlic  h'gal 
title  to  be  a  trustee  for  the  equitable  owner. 

The  act  of  the  register  in  issuing  a  warrant  ixnder  such  a  certificate,  is 
ministerial,  not  judicial. 


Brush  v.  Ware.  651 

JVn  executor  has  no  power  to  ai?si.<2:ii  a  military  rioht.  unless  ojiven  to  him 
by  tlie  will,  and  a  purchaser  of  sucii  a  title  lias  constructive  notice  of 
the  will,  which  he  was  bound  to  see. 

The  case  is  stated  in  the  opinion  of  the  eonrt. 
Mason  for  the  appellant. 
No  counsel  contra. 

M'Lean,  J.,  delivered  the  oi)inion  of  the  court. 

This  is  an  appeal  from  the  decree  of  the  Circuit  Court  of  Ohio. 

In  their  bill  the  complainants  represent  that  thej-  are  the  only 
heirs  and  legal  representatives  of  John  Hockaday,  late  of  the 
county  of  New  Kent,  in  the  Commonwealth  of  Virginia. 

That  Hockaday,  in  the  Revolution,  was  a  captain  in  the  Vir- 
ginia line  on  continental  establishment,  which,  under  the  acts 
and  resolutions  of  Congress,  entitled  him  to  four  thousand  acres 
of  land  in  the  Virginia  reservation,  within  the  State  of  Ohio. 
That  in  1799,  Hockaday  died,  leaving  as  his  only  child  and  heir, 
Hannah  C.  Ware,  who  had  intermarried  with  Robert  S.  Ware,  aud 
who  was  the  mother  of  a  part  of  the  complainants  and  the  grand- 
mother of  the  others. 

That  Hockaday  left  a  will  in  which  he  disposed  of  his  personal 
estate  only,  and  appointed  Ware,  with  two  other  persons,  his 
execiitors.  Ware  proved  the  will,  the  others  declining  to  act ; 
and  that  he  wholly  neglected  his  duties  as  executor  and  never 
settled  the  estate.  That  their  mother  died  in  1805,  and  Robert 
S.  Ware,  their  father,  also  died  some  years  afterwards.  That  in 
the  year  1808,  one  Joseph  Ladd,  who  has  since  deceased,  being 
insolvent  and  without  heirs,  fraudulently  made  a  contract  with 
the  executor  for  the  sale  of  the  above  military  right :  and  having 
obtained  the  certificate  of  such  right  from  the  executive  council  of 
Virginia,  the  same  was  assigned  to  Ladd  for  the  consideration  of 
$40  and  a  pair  of  boots.  That  on  this  certificate  and  assignment 
Ladd  obtained  four  warrants,  of  a  thousand  acres  each,  as  the 
assignee  of  Ware,  the  executor  of  Hockaday. 

One  of  these  warrants  was  assigned  to  George  Hofiinan  by 
Ladd,  and  through  certain  other  assignments  to  Brush.  By  a 
part  of  this  warrant  the  two  tracts  of  land  in  controversy  were 
entered,  and  for  which  Brush  obtained  patents  from  the  United 
States,  dated  the  23d  of  January,  1818.  And  the  complainants 
allege  tliat  Brush  was  a  purchaser  with  notice  of  their  equity,  and 
thej^  pray  that  he  may  be  decreed  to  convey  to  them  the  title,  &c. 


552  Brush  v.  Ware. 

In  his  answer  the  defendant  states  that  lie  was  a  b emu  fide  pur- 
chaser for  a  valuable  consideration,  and  without  notice  of  the 
complainants'  equity.  And  he  insists,  if  the  court  shall  decree 
for  the  complainants,  that  he  is  entitled  to  the  part  usually  given 
to  the  locator  for  making  the  entry  and  obtaining  the  title  for  the 
land.  And  also  that  he  is  entitled  to  moneys  paid  for  taxes,  &c., 
on  the  land. 

This  cause  has  been  ably  argued  on  the  ])art  of  Brush,  the 
appellant. 

The  question  wliich  lies  at  tlie  foundation  of  this  controversy,, 
and  which,  in  its  order,  should  be  first  considered,  is  whether  the 
court  can  go  behind  the  patent  and  examine  the  eciuity  asserted 
in  the  bill. 

Whatever  dou])t  might  arise  on  this  question  on  common  law 
principles,  there  can  be  none  when  the  peculiar  system  under 
which  this  title  originated  is  considered.  In  Ohio  and  Kentucky 
this  question  has  been  long  settled  judicially  ;  and  this  court,  fol- 
lowing the  decisions  of  those  States,  have  also  decided  it.  {Bod- 
ley  mid  others  v,  T(jylor,  5  Cranch,  191.) 

In  the  case  of  Polk's  Lessee  v.  Wendtdl  et  al.,  9  C-ranch,  98,  the 
court  say :  "  That  every  prerequisite  has  been  performed  is  an 
inference  properly  deducible,  and  which  every  man  has  a  right  to 
draw  from  the  existence  of  the  grant  itself.  It  would,  therefore, 
be  extremely  unreasonable  to  avoid  a  grant  in  an}'  court  for 
irregularities  in  the  conduct  of  those  who  are  appointed  by  the 
government  to  supervise  the  progressive  course  of  a  title  from  its 
commencement  to  its  consummation  in  a  patent.  But  there  are 
some  things  so  essential  to  the  validity  of  the  contract  that  the 
great  principles  of  justice  and  of  law  would  be  violated,  did  there 
not  exist  some  triininal  to  which  an  injured  party  might  appeal, 
and  in  which  the  means  by  which  an  elder  title  was  acquired  might 
be  examined."  And  the  court  after  showing  that  a  court  of  equity 
was  the  proper  tribunal  to  make  this  examination,  remark  :  "But 
there  are  cases  in  which  a  grant  is  absolutely  void,  as  where  the 
State  has  no  title  to  the  thing  granted,  or  where  the  officer  had 
no  authority  to  issue  the  grant.  In  such  cases  the  validity  of  the 
grant  is  necessarily  examinable  at  law." 

The  same  case  was  again  brought  before  the  court  by  a  writ  of 
error,  and  is  reported  in  5  Wheat,  293,  in  which  the  court  held 
that  the  s3-stem  under  which  land  titles  oi-iginated  in  Tennessee 


Brush  v.  Ware.  553 

bein^  jjeculiar,  constituted,  with  tlie  adjudication  of  its  courts,  a 
rule  of  decision  for  this  court. 

In  the  case  of  Miller  and  others  v.  Kerr  and  others,  7  Wheat,  1, 
it  was  lield  that  an  equity  arisinu-  from  an  entry  of  land  made  on 
a  warrant  which  had  been  issued  by  mistake  could  not  be  sus- 
tained ao^ainst  a  patent  issued  on  a  junior  entry.  The  court  say  : 
"The  oreat  ditticulty  in  this  case  consists  in  the  admission  of  any 
testimony  whatever  which  calls  into  question  the  validity  of  a 
warrant  issued  bj'^  the  officer  to  whom  that  duty  is  assigned  by 
law.  In  examining  this  question  the  distinction  between  an  act 
which  is  judicial  and  one  which  is  merely  ministerial  must  be 
regarded.  The  register  of  the  land  office  is  not  at  libert}'  to 
examine  testimony  and  to  exercise  his  own  judgment  respecting 
the  right  of  an  applicant  for  a  military  land  warrant. 

And  in  the  case  of  Hoofuagle  and  others  v.  Anderson,  7  Wheat,, 
212,  another  question  was  raised  on  an  entry  made  by  virtue  of 
the  same  warrant. 

The  mistake  in  the  warrant  consisted  in  this  :  Thomas  Powell 
having  performed  military  services  in  the  Virginia  State  line,  a 
certificate  by  the  executive  council  of  Virginia  was  obtained  by 
his  heir,  which  entitled  him  to  a  certain  amount  of  land.  On 
this  certificate  the  register  of  the  land  office  at  Richmond.  Vir- 
ginia, issued  a  warrant,  which,  instead  of  reciting  that  the  ser- 
vices were  performed  in  the  State  line,  stated  that  they  were  per- 
formed in  the  State  line  on  continental  establishment.  This  mis- 
take was  important,  as  the  tract  of  country  in  Ohio  in  which  the 
warrant  was  located  was  reserved,  in  the  cession  by  Virginia,  for 
the  satisfaction  only  of  warrants  issued  for  military  services  in  the 
State  line  on  continental  establishment,  and  consequently  was 
not  subject  to  the  right  of  Powell.  And  the  court  remark,  how 
far  the  patent  ought  to  be  affected  by  this  error  is  the  question 
on  which  the  cause  depends.  The}^  say  there  was  no  ground  to 
suspect  fraud  ;  that  the  warrant  was  assignable,  and  carried  with 
it  no  evidence  of  the  mistake  which  had  been  committed  in  the 
office ;  that  it  had  been  assigned  for  a  valuable  consideration, 
and  the  pui'chaser  had  obtained  a  patent  for  the  land  without 
actual  notice  of  any  defect  in  the  origin  of  his  title  ;  and  they 
held  that  the  patent  gave  a  good  title  as  against  any  one  whose 
ntrj'  was  subsequent  to  its  date. 

A  patent  appropriates  the  land  called  for,  and  is  conclusive 
against  rights   subsequently   acquired ;    but  where   an  equitable 


554  Brush  v.  Ware. 

right  which  orignated  before  the  date  of  the  patent,  whether  by 
the  first  entry  or  otherwise,  is  asserted,  it  may  be  examined.  The 
patent,  under  the  Virginia  land  law,  as  modified  by  usage  and 
judicial  construction  in  Kentucky  and  Ohio,  conveys  the  legal 
title,  but  leaves  all  equities  open.  {Bouldin  and  Wife  v.  Mussie's 
Heirs  and  Others,  7  AVlieat.,  141).) 

The  controvers}^  in  this  case  does  not  arise  from  adverse  entries, 
but  between  claimants  under  the  same  warrant ;  and  it  is  admitted 
that  Ware,  as  executor,  had  no  power  to  assign  the  military  right 
which,  on  the  decease  of  llockaday,  descended  to  his  heirs.  It 
is  too  clear  to  admit  of  doubt  that  Ladd,  by  circumvention  and 
fraud,  obtained  the  assignment  from  the  executor,  which  enabled 
him  to  procure  the  warrant  from  the  register. 

As  between  Ladd  and  the  complainants,  can  there  be  any  doubt 
that  this  case  would  be  examinable  in  equity?  Could  the  issuing 
of  the  warrant  by  the  register  interpose  any  objection  to  such  an 
investigation? 

It  is  insisted  that  the  register,  of  necessity,  before  he  issues  the 
warrant,  must  determine  the  right  of  tlie  applicant,  and  that  in 
doing  so  he  acts  judicially ;  that  presumptions  not  only  arise  in 
favor  of  such  acts,  but  unless  fraud  be  shown,  they  are  not  open 
to  examination. 

The  executive  council  of  Virginia  in  determining  the  right  of 
Hockaday's  heirs  may  be  said  to  have  acted  judicially  ;  but  the 
register,  in  the  language  of  the  court  in  one  of  the  cases  above 
cited,  acted  ministerially.  The  court  sa}^  he  was  not  authorized 
to  examine  witnesses  in  the  case,  but  was  bound  to  act  upon  the 
face  of  the  certificate.  The  parties  interested  were  not  before 
him,  and  he  had  no  means  of  ascertaining  their  names,  giving 
them  notice,  or  taking  evidence.  And,  under  such  circumstances, 
would  it  not  be  a  most  extraordinary  rule  which  should  gave  a 
judicial  character  and  effect  to  his  proceedings?  He  acts,  and 
must  necessarily  act  from  the  face  of  the  paper,  both  as  it  regards 
the  certificate  of  the  executive  council  and  the  asssignment  of 
such  certificate.  His  acts,  in  their  nature,  are  strictly  ministerial. 
They  have  neither  the  form  nor  effect  of  a  judicial  proceeding. 

It  may  be  admitted  that  presumptions  arise  in  favor  of  the  acts 
of  a  ministerial  officer,  if  apparent^  fair  and  legal,  until  they 
shall  be  impeached  by  evidence  ;  but  in  this  case  there  is  no  im- 
peachment of  the  acts  of  the  register.  The  evidence  on  which 
he  acted  is  stated  on  the  face  of  the  warrant,  which  enables  the 


Brush  v.  Ware.  555 

proper  tribunal,  as  between  the  parties  interested,  to  determine 
the  (piestion  of  riglit,  which  the  register  had  neitlier  the  means 
nor  the  power  to  do. 

The  complainants  do  not  deny  the  srenuineness  of  the  certifi- 
cate, the  assignment,  or  the  warrant,  but  thev  say^that  the  executor 
had  no  right  to  make  the  assignment,  and  that  the|issuing  of  the 
warrant  by  the  register  does  not  preclude  them^from  raising  that 
question. 

Until  the  patents  were  obtained  this  warrant,  though  assigned 
and  entered  in  part  on  the  land  in  controversy,  conveyed  only  an 
equitable  interest.  Hoffman,  to  whom  Ladd  assigned  it,  and  the 
other  assignees,  took  it  subject  to  all  equities.  In  their  hands, 
unless  affected  b}^  the  statute  of  limitation  or  'lapse  of  time,  any 
equity  arising  from  the  face  of  the  instrument  could  be  asserted 
against  them,  the  same  as  against  Ladd. 

Brush,  being  the  last  assignee,  obtained  tlie  patents  in  his  own 
name  as  assignee,  and  these  vested  in  him  tlie  legal  estate  :  but 
this,  on  the  principles  which  have  been  long  established  in  rela- 
tion to  these  titles,  does  not  bar  a  prior  equity.  The  complainants 
are  proved  to  be  the  heirs  of  Hockaday,  and  a  part  of  them  were 
minors  at  the  commencement  of  this  suit.  All  of  them,  in  age, 
were  of  tender  years  when  the  warrant  was  assigned,  and  it 
appears  that  none  of  them  came  to  a  knowledge  of  their  rights 
until  a  short  time  before  the  bill  was  filed  :  and  this  is  an  answer 
both  to  the  statute  of  limitations  and  the  lapse  of  time.  The 
statute  of  ( )hio  does  not  run  against  non-residents  of  the  State  ; 
nor  can  lapse  of  time  operate  against  infants,  under  the  circum- 
stances of  this  case. 

The  great  question  in  this  controversy  is.  whether  Brush  is 
chargeable  with  notice. 

The  certificate  of  tlie  executive  counsel  of  Virginia  stated  that 
"tlie  representatives  of  John  Hockaday  were  entitled  to  the  pro- 
portion of  land  allowed  a  captain  of  the  continental  line  for  three 
years'  service."  To  this  was  appended  a  request  to  the  register 
of  the  land  office  to  issue  a  warrant  in  the  name  of  Joseph  Ladd, 
his  lieirs  or  assigns,  signed  by  Ware,  executor  of  Hockaday,  he 
having  received,  as  stated,  full  value  for  tlie  same. 

P'our  military  warrants,  of  one  thousand  acres  each,  were  issued 
by  the  register  -'the  9th  of  August,  1808,  to  Joseph  Ladd.  assignee 
of  Robert  8.  AVare.  executor  of  John  Hockaday,  deceased." 

Bv  virtue  of  one  of  these  warrants  four  hundred  acres  of  the 


656  Brush  v.  Ware. 

land  in  dispute  were  entered  ou  the  8tl)()f  June,  180!).  in  the  name 
of  (leoroe  Iloffmnn,  assignee,  and  two  hundred  acres  in  the  same 
name  tlie  18th  of  August,  1810.  These  entries  were  surveyed  in 
May,  1810,  and  on  tlie'  20th  of  January,  1818,  patents  were  issued 
to  "Brush,  assignee  of  John  Iloftman.  who  was  assignee  of  Josej)!! 
HotTman  <>(  aL.  assignees  of  George  Ilofi'man,  who  was  assignee 
of  Josepli  Ladd.  assignee  of  Robert  S.  Ware,  executor  of  Hocka- 
day,"  &c. 

It  is  insisted  that  the  general  doctrine  of  notice  does  not  apply 
to  titles  of  this  description  ;  and  this  position  is  true  so  far  as 
regards  the  original  entry.  To  make  a  valid  entry  some  object 
of  notoriety  must  be  called  for,  and  unless  this  object  be  proved 
to  have  been  generally  known  in  the  neighborliood  of  the  land  at 
the  time  of  the  entrj^  the  holder  of  a  warrant  who  enters  the  same 
land,  with  full  notice  of  the  first  entry,  will  have  the  better  title  ; 
and  so,  if  an  entry  be  not  specific  as  to  the  land  intended  to  be 
appropriated,  or  in  any  respect  be  defective,  it  conveys  no  notice 
to  a  subsequent  locator,  nor  can  it  be  made  good  by  a  subsequent 
purchaser  without  notice.  {Kerr  v.  Watts,  6  Wheat.,  560.)  But, 
with  these  exceptions,  the  docti-ine  of  notice  has  been  considered 
applicable  to  these  military  titles,  as  in  other  cases  ;  and  no  reason 
is  perceived  why  this  rule  should  not  prevail. 

From  the  nature  of  these  titles  and  the  force  of  circumstances 
an  artificial  system  has  been  created  unlike  any  other,  and  which 
has  long  formed  the  basis  of  title  to  real  estate  in  a  large  and  fer- 
tile district  of  country.  The  peculiarities  of  this  system  having 
for  half  a  century  received  judicial  sanctions,  must  be  preserved, 
but  to  extend  them  would  be  unwise  and  impolitic. 

Brush,  it  is  insisted,  was  a  bona  fide  purchaser  for  a  valuable 
consideration,  without  notice. 

Th€  answer  under  which  this  defence  is  set  up.  is  neither  in 
substance  nor  in  form  free  from  objection.  It  does  not  state  the 
amount  of  consideration  paid,  the  time  of  payment,  nor  does  it 
deny  the  circumstances  from  which  notice  can  be  inferred.  {Boon 
V,  Chiles.  10  Pet.,  211,  212.  But,  passing  over  the  considerations 
which  arise  out  of  the  answer,  we  will  inquire  whetlier  the  defen- 
dant is  not  chargeable  with  notice,  from  the  facts  which  appear 
upon  the  face  of  his  title. 

The  entry  on  the  V)Ooks  of  the  surveyor,  kept  at  the  time  in  the 
State  of  Kentucky,  was  the  incipient  step  in  the  acquisition  of 
the  title.     This  entry  could  only  be  made  by  ]iroducing  to  the 


Brush  r.  Wakk.  557 

surveyor,  and  tiling-  in  his  oflfice,  the  original  warrant,  or  a  certi- 
fied copy  of  it.  Tlie  survey  was  then  made,  and  a  plat  of  tlie 
land,  by  a  deputy,  who  returned  the  same  to  the  principal  sur- 
veyor's office.  This  survey  is  called  the  plat  and  certificate,  and 
is  assignable  by  law :  but  without  an  entry  founded  upon  a  war- 
rant, it  is  of  no  validity.  On  the  transmission  of  tliis  survey, 
under  the  hand  and  seal  of  the  principal  surveyor,  accompanied 
by  the  the  original  warrant,  or  a  copy,  to  the  general  laud  office, 
a  patent  is  issued  to  the  person  apparentl}'  entitled  to  it.  In 
issuing  the  patent,  the  commissioner  of  the  land  office  perforins  a 
ministerial  duty.  He  examines  no  witnesses,  but  acts  from  the 
face  of  the  papers,  and  exercises  no  judgment  on  the  subject, 
except  so  far  as  regards  matters  of  form.  The  patent,  therefore, 
conveys  the  legal  title  only,  leaving  prior  equities  open  to  inves- 
tigation. 

This  is  the  history  of  this  title,  and  of  every  other  in  the  same 
district  of  country.  And  the  question  arises,  whether  the  respon- 
dent, under  the  circumstances,  was  a  bona  fide,  purchaser  for  u 
valuable  consideration,  without  notice. 

In  his  answer,  he  says,  that  he  never  saw^  the  warrant,  the  entries 
nor  the  surveys  on  which  the  patents  were  founded  ;  and  that  he 
had  no  information  as  to  the  derivation  of  the  title,  except  that 
which  the  patents  contain. 

The  question  is  not  whether  the  defendant  in  fact  saw  any  of 
the  muniments  of  title,  but  whether  he  was  not  bound  to  see  them. 
It  will  not  do  for  a  purchaser  to  close  his  eyes  to  facts — facts 
which  were  open  to  his  investigation,  by  the  exercise  of  that  dili- 
gence which  the  law  imposes.     Such  purchasers  are  not  protected. 

It  is  insisted  that,  the  plats  and  certificates  being  assignable, 
the  defendant  might  well  pui-chase  them  without  a  knowledge  of 
the  facts  contained  on  the  face  of  the  warrant.  But  was  he  not 
bound  to  look  to  the  warrant  as  the  foundation  of  his  title?  The 
surveys  were  of  no  value  without  the  warrant.  No  principle  is 
better  established  than  that  a  purchaser  must  look  to  every  part 
of  the  title  whicli  is  essential  to  its  validity. 

The  warrant  was  in  the  land  office  of  the  principal  surveyor ; 
and  although  this,  at  the  time,  was  kept  in  Kentuck}^  the  defen- 
dant was  bound  to  examine  it.  In  this  office  his  entries  were 
made,  and  to  it  his  surveys  were  returned.  And  from  this  office 
was  the  evidence  transmitted  on  which  the  patents  were  issued. 
Can  it  be  contended  that  the  defendant,  who  purchased  an  inchoate 


558  Brush  v.  Ware. 

title — a  mere  equity — was  not  bound  to  look  into  the  origin  of  that 
equity?  As  a  prudent  man,  would  he  not  examine  whether  that 
which  he  bought  was  of  any  value?  The  records  of  the  land  office, 
and  the  papers  there  on  file,  showed  the  origin  of  the  title,  and 
the  steps  which  had  been  taken  to  perfect  it.  By  the  exercise  of 
ordinary  prudence,  he  would  have  been  led  to  make  this  exami- 
nation ;  and,  in  law,  he  must  be  considered  as  having  made  it. 

And  here  the  question  arises,  whether  the  statements  of  the 
warrant,  which  were  afterwards  copied  into  the  patents,  that  the 
rights  originally  belonged  to  Ilockaday,  descended  to  his  heirs  on 
his  decease,  and  had  been  assigned  to  Ladd  by  his  executor,  were 
not  sufficient  to  put  the  defendant  on  inquiry.  Now,  an  executor 
has  not  ordinarily  any  power  over  the  real  estate.  His  powers 
are  derived  from  the  will,  and  lie  can  do  no  valid  act  beyond  his 
authority.  Where  a  will  contains  no  special  provision  on  the 
subject,  the  land  of  the  deceased  descends  to  his  heirs,  and  their 
rights  cannot  be  divested  or  impaired  by  the  unauthorized  acts  of 
the  executor. 

The  warrant  then  showed  the  purcliaser  that  this  right,  which 
pertained  to  the  realty,  and  which,  on  the  death  of  Hockaday, 
descended  to  his  heirs,  had  been  assigned  by  the  executor.  Was 
not  this  notice?  Was  it  not  a  fact  essentially  connected  with 
the  title  purchased  by  the  defendant,  which  should  have  put  him 
upon  inquiry?  If  it  would  do  this,  it  was  notice  ;  for  whatever 
shall  put  a  prudent  man  on  inquiry  is  sufficient.  And  this  rule  is 
founded  on  sound  reason,  as  well  as  law.  How  can  an  individual 
claim  as  an  innocent  purchaser,  under  such  a  circumstance? 

But  it  is  argued  that  it  would  impose  on  the  defendant  an 
unreasonable  duty,  to  hold  that  he  was  bound  not  only  to  examine 
the  warrant  in  the  land  office  in  Kentucky-,  but  to  hunt  up  the  will 
of  Hockaday,  and   see  what  powers  it  conferred  on  the  executor. 

The  law  requires  reasonable  diligence  in  a  purchaser  to  ascer- 
tain any  defect  of  title.  But  when  such  defect  is  brought  to  his 
knowledge,  no  inconvenience  will  excuse  him  from  the  utmost 
scrutiny.  He  is  a  voluntary  purchaser ;  and  having  notice  of  a 
fact  which  casts  doubt  upon  the  validity  of  his  title,  are  the  rights 
of  innocent  persons  to  be  prejudiced  through  his  negligence? 

The  will  of  Hockaday  was  proved  on  the  11th  day  of  July, 
1799,  before  the  county  court  of  New  Kent,  in  Virginia,  and 
recorded  in  the  proper  records  of  that  county.  AVhen  the  defen- 
dant purchased  the  title  he  knew  that  it  originated  in  Virginia ; 


Brush  v.  Ware.  559 

had  been  sanctioned  by  the  executive  council  of  that  State,  and 
that  the  warrant  had  been  issued  by  the  register  at  Richmond. 
These  are  matters  of  public  law,  and  are  consequentl}''  known  to 
all.  But,  independently  of  this,  every  purchaser  of  a  military  title 
cannot  but  have  a  general  knowledge  of  its  history. 

Why  was  not  the  defendant  bound  to  search  for  the  will?  The 
answer  given  is,  the  distance  was  too  great,  and  the  place  where 
the  will  could  be  found  was  not  stated  on  the  warrant,  or  on  any 
of  the  other  papers.  That  mere  distance  shall  excuse  inquiry  in 
such  a  case,  would  be  a  new  principle  iu  the  law  of  notice. 

The  certificate  of  the  original  right  and  the  warrant  were 
obtained  in  Richmond,  Virginia.  And  in  the  office  records  and 
papers  of  the  executive  council,  or  in  those  of  the  register,  in 
Richmond,  a  copy  of  the  will  probably  could  have  been  found. 
And  if  such  a  search  had  been  fruitless,  it  is  certain  that  it  could 
have  been  found  on  the  public  records  of  wills  of  New  Kent 
county.  A  search,  short  of  this,  would  not  lay  the  foundation 
for  parol  evidence  of  the  contents  of  a  written  instrument.  And 
shall  a  purchaser  make  a  bad  title  good  by  neglecting  or  refusing 
to  use  the  same  amount  of  vigilance? 

In  the  case  of  Rpcder  et  ul.  v.  Barr  ef  al.  (4  Ohio,  458),  the 
►Supreme  Court  of  Ohio  held  that,  where  a  patent  was  issued  to 
Newell,  as  assignee  of  the  administrator  of  Henson  Reeder,. 
deceased,  it  was  sufiicient  to  charge  a  subsequent  purchaser  with 
notice  of  the  equitable  rights  of  the  heirs  of  Reeder. 

It  is  difficult  to  draw  a  distinction,  in  principle,  between  that 
case  and  the  one  under  consideration.  An  administrator  in 
Ohio  has  no  power,  unless  authorized  by  tlie  court  of  common 
pleas,  to  sell  or  convey  an  interest  in  land  ;  nor  has  an  executor 
in  Virginia  any  power  over  the  realty,  unless  it  be  given  to  him 
in  the  will.  In  this  case,  therefore,  the  purchaser  was  as  much 
bound  to  look  into  the  will  for  the  authority  of  the  executor,  as 
the  Ohio  purchaser  was  bound  to  look  into  the  proceedings  of  the 
court  for  the  authority  of  the  administrator. 

The  case  of  The  Lessee  of  Willis  v.  Bncher  (2  Binn.,  4.').5),  is 
also  in  point.  The  defendant  derived  his  title  from  AYilliam 
AVillis,  to  whom  a  patent  had  issued,  reciting  that  the  title  was 
derived  under  the  will  of  Henry  Willis.  This  will  did  not  author- 
ize the  sale  of  the  premises,  and  the  court  held  that  this  was 
notice  to  the  defendant. 

So   in  the  case  of  Jackson  ex  dem.   Livingston  v.   Neely  (10 


660  Brush  v.  Ware. 

Johns.,  374),  it  was  held  that,  where  a  deed  recited  a  letter  of 
attorney,  by  virtue  of  which  the  conveyance  was  made,  which 
was  duly  deposited  with  the  clerk  of  Albany,  according  to  the 
act  of  the  8th  January.  1704,  it  was  held  to  be  sufficient  notice 
of  the  power  by  means  of  the  recital,  to  a  subsequent  purchaser, 
who  was  equally  affected  by  it  as  if  the  power  itself  had  been 
deposited. 

An  agent  receiving  notes  from  an  executor.  |)ayable  to  him  as 
executor,  as  secm-ity  for  advances  by  the  ])rincipal  to  the  execu- 
tor, on  his  private  account,  and  not  a.s  executor,  affects  his  prin- 
cipal, with  notice  that  it  is  a  dealing  with  an  executor,  with  the 
assets,  for  a  purpose  foreign  to  the  trusts  he  was  to  discharge. 
(2  Ball  c^'  Beat,  491.) 

When  a  purchaser  cannot  make  out  his  title  but  through  a  deed 
which  leads  to  a  fact,  lie  will  be  affected  with  notice  of  that  fact. 
{Mertins  v.  JolUffe,  Amb.,  311.) 

A  made  a  conveyance  to  B.  with  a  power  of  revocation  by  will, 
and  limited  other  uses.  If  A  dispose  to  a  purchaser  by  will,  a 
subsequent  purchaser  is  intended  to  have  notice  of  the  will  as 
well  as  of  the  power  to  i-evoke  ;  and  this  is  a  notice  in  law.  And 
so  in  all  cases  where  a  purcliaser  cannot  make  out  a  title  but  by 
deed,  which  leads  to  another  fact,  notice  of  which  a  purchaser 
shall  be  presumed  cognizant ;  for  it  is  crassa.  negligenfia  that  he 
sou2:ht  not  after  it.     {Moore  v.  Bennet.  2  Ch.  Ca..  246.) 

Notice  of  letters-patent,  in  which  there  was  a  trust  for  cred- 
itors, is  sufficient  notice  of  the  trust.  {Dunch  v.  Kent.  1  Vern.. 
31!).) 

That  which  shall  be  sufficient  to  put  the  party  upon  inquiry,  is 
notice.     (1^3  Ves.,  120.) 

On  a  full  consideration  of  this  part  of  the  case,  we  think  that 
the  defendant  must  be  hold  to  be  a  purchaser,  with  notice. 

The  circuit  court  considered  the  defendant  as  vested  with  a  right 
to  such  part  of  the  land  as  is  usually  given  to  a  locator,  and 
directed  one-fourth  of  the  two  tracts  to  be  laid  off'  to  him,  so  as  to 
include  his  improvements  ;  and  they  also  decreed  to  the  defend- 
ant three-fourths  of  the  taxes  paid  by  him,  with  interest.  This 
part  of  the  decree  is  equitable  ;  and.  as  we  coincide  with  the  views 
of  the  circuit  court  on  all  the  points  of  the  case,  the  decree  is 

Affirmed. 

Note. — A  purchaser  from  one  hohHng  under  a  patent,  is  not  bound 
to   look   behind   the   patent   to  learn    if  it  properly   issued  to  the  one 


Wiuiinr  r.  Taylor.  561 

entitled  to  it.  Schnea  v.  Sr/uiee,  -Hi  Wis.,  ;^77.  Bnt  every  purchaser  of 
land  is  presumed  to  have  notice  of  any  defect  of  title  apparent  upon  the 
face  of  tlie  patent,  under  which  he  purchases,  but  he  is  not  bound  to  look 
for  latent  defects  in  the  chain  of  assignments  recited  in  the  patent. 
Moore  \.  Hunter.  1  Gill.  (Ill  ),  317;  Bell  v.  Iht'ican,  11  Ohio,  192. 

Where  the  patent  recites  assignments  by  persons  not  legally  com- 
petent, (an  administrator)  to  convey  without  special  authority,  the  pur- 
chaser under  sucli  patent,  is  bound  to  see  tliat  such  autliority  to  assign 
has  been  obtained.  Bomter  v.  Ware.  10  Ohio,  465.  But  in  case  of  an 
assignment  referred  to  in  a  patent,  as  having  been  made  by  the  heirs  of 
the  warrantee,  the  presumption  is  that  the  heirs  were  of  full  a^^e  and 
competent  to  convey.     Scott  v.  Eoans.  1   Mcl.ean,  4SG. 

If  the  guardian  of  a  minor  without  authority  from  the  probate  court,  sell 
and  assign  a  warrant  issued  to  such  minor,  under  the  act  of  Congress  of 
February  11.  1847,  and  the  assignee  locate  the  warrant  and  obtain  a 
patent  in  his  own  name,  he  will  be  decreed  to  hold  the  land  in  trust  for 
the  minor  child.     Mack  v.  Brammer,  28  Ohio  St.,  ")0S. 

Land  scrip  issued  under  the  act  of  May  23,  1828.  to  A.  B  and  C  for 
thems  Ives,  and  in  trust  for  the  other  heirs  of  S.  the  scrip  was  not 
assignable  on  its  face,  nor  made  so  by  law.  The  guardian  of  A,  B  and 
C  assigned  the  scrip,  which  was  afterward  located  and  patented  in  the 
name  of  the  assignee.  Held,  that  the  patentee  held  the  interest  of  the 
heirs  of  S.  not  named  in  the  scrip  in  trust  for  them,  and  that  such  inter- 
est in  the  land  should  be  conveyed  to  them.  Stoddard  v  Smith  11  Oliio 
St.,  o81. 

If  a  certificate  of  entry  issue  to  heirs  the  legal  title  is  in  them,  and  an 
assignment  of  the  certificate  by  the  admiui*(7-ator  is  absolutely  void. 
Hnckins  \.  Johnson,  4  Blackf.  (!  nd.).  21 .  . 


David  V.  Wkiout  r.  Samcel  K.  Tavloi;. 

U.  S.  Circuit  Court,  District  of  Missouri,  1871.— 2  Dillon.  23. 

Ejectment— MiUtarij  Bounty  Lands— Special  Legislation -Curative  S/atules— 

Deeds  Defectively  Acknowledged— Construction  of  Missouri  Statutes. 

IJefore  The  at  and  Krekel,  J.  ,J.  : 

This  was  an  action  of  ejectment  to  recover  possession  of  certain 
land  in  Chariton  county.  Missouri,  forniino:  part  of  the  ti-act  appro- 
priated for  military  bounties.  Plaintitf  claimed  under  a  patent 
for  the  land,  granted  to  Nicholas  Columbey.  dated  January  4, 
1«19,  and  on  the  trial  offered  in  evidence  said  patent,  tooetlier  with 
a  power  of  attorney  by  Columbey  to  AVilliam  Russell,  dated  Feb- 
ruary 2.3.  1816.  a  deed  from  Columbey  by  said  Russell,  his  attor- 
ney,  to  Moses  Russell,  dated  June  1.  1819,  and  also  subserpient 
deeds  making  a  chain  of  title  to  plaintiff. 

36 


562  Wright  t\  Taylor. 

The  defendant  objected  to  the  admission  of  said  power  of  attor- 
ney and  the  deed  made  thereunder,  as  being  in  violation  of  the 
acts  of  Congress  granting  Itounty  lands,  and,  therefore,  void  under 
thera.  Objections  were  also  taken  to  other  deeds  offered  in  evi- 
dence upon  the  ground  that  some  of  them  were  imperfectly 
acknowledged,  and  that  others,  being  copies,  could  not  be  admit- 
ted, the  statutory  requirements  governing  the  admission  of  copies 
not  having  been  complied  with. 

The  court  sustained  the  objections  as  to  the  power  of  attorney 
and  the  deed  made  thereunder,  and  rendered  judgment  for 
defendant. 

Jewett  4"  Bigger  for  the  plaintiff". 

Krum  6f-  Decker  for  the  defendant. 

Treat,  District  Judge  : 

The  court  rules  the  following  propositions  : 

1.  In  bestowing  the  bounty  of  the  government  upon  its  soldiers, 
Congress  had  an  undoubted  right  to  shape  that  bounty  as  it 
deemed  best,  either  by  prescribing  conditions  or  limiting  the 
tenure  and  quality  of  the  grant. 

2.  The  act  of  Congress  of  April  16,  1816,  authorizing  the  desig- 
nation of  lands  for  military  bounties,  prohibited  the  alienation  of 
said  lands  until  after  the  issue  of  the  patent  therefor.  Held,  that 
a  deed  made  in  1820,  by  the  attorney  of  a  patentee,  under  a  power 
of  attorney  executed  in  February,  1816,  the  patent  not  having 
issued  till  1819,  is  void  ah  initio,  as  being  within  the  prohibition 
of  the  act.i 

3.  The  federal  court  will  follow  the  decision  of  the  State  Supreme 
Court  as  to  the  admissibility  in  evidence  of  certified  copies  of  deeds 
without  accounting  for  the  absence  of  the  originals,  and  as  to  the 
various  curative  acts  concerning  deeds  improperly  or  defectively 
acknowledged,  and  as  to  the  force  and  effect  of  tlie  recording  acts, 
whether  those  decisions  are  in  accord  with  what  are  deemed 
sound  rules  of  interpretation  or  otherwise. 

4.  The  provision  of  the  Missouri  constitution  of  1865  forbidding 
the  enactment  of  special  laws,  giving  effect  to  informal  or  invalid 
wills  or  deeds,  etc.,  does  not  prevent  the  enactment  of  general 
curative  statutes  upon  the  subjects  named,  nor  upon  any  of  the 
other  classes  of  subjects  enumerated  in  that  clause  of  the  consti- 
tution ;  such  acts  being  general  in  the  constitutional  sense,  since 
they  apply  to  a  class  and  not  to  individual  cases  ;    hence,  the 


WiUGHT  V.  Taylor.  563 

exceptional  legislation  as  to  militaiy  bounty  lands  in  INIissoiiri  is 
not  within  the  provision  of  the  Missouri  constitution. 

.').  Section  38,  chap.  109,  of  the  Revised  Statutes  of  Missouri, 
pertaining  to  the  admissibilit}^  in  evidence  of  certified  copies  of 
deeds  for  military  bounty  lands,  is  not  repealed  by  the  act  of 
February  27,  1868  (Session  Acts,  1868,  p.  51),  nor  is  the  common 
law  mode  of  proving  the  execution  of  deeds  thereby  abrogated  ; 
hence,  a  deed  for  such  lands  can  be  received  in  evidence  where  its 
execution  is  proved  according  to  the  common  law  mode,  in  the 
same  manner  as  any  other  deed  not  acknowledged  or  recorded 
properly,  and  it  will  be  valid  between  the  parties  and  those  hav- 
ing actual  notice  and  mere  trespassers. 

6.  A  certified  copy  from  the  recorder's  office  of  such  deed,  when 
the  original  has  been  recorded  and  acknowledged  under  section  35, 
chap.  lO'J,  Revised  Statutes  of  Missouri.  1865,  must  be  received 
in  evidence  upon  proof  of  the  loss  or  destruction  of  the  original ; 
and  if  duly  acknowledged  according  to  the  laws  of  Missouri,  a 
certified  copy  is  to  be  received  on  the  same  terms  as  other  deeds 
with  valid  acknowledgment. 

7.  A  deed  improperly  acknowledged  in  New  York  in  1820, 
according  to  the  laws  both  of  New  York  and  Missouri  at  that 
time,  and  recorded  in  Missouri  in  1822,  is  not  such  a  deed  as 
section  35  et  seg.  of  chap.  109  of  the  Revised  Statutes  of  1865 
affects  ;  and  a  curative  act  passed  in  New  York  in  1824  to  operate 
on  such  imperfect  acknowledgment  in  that  State,  cannot  act 
extra-territorially  and  work  curatively  upon  a  deed  to  Missouri 
^^"'^•^-  Judgment  for  defendant. 

,  jSToTK.—The  elaborate  opinion  of  Treat,  -J.,  in  support  of  the  forego- 
ing pi-opositions,  will  be  found  published  at  length  hi  the  St.  Louis  Law 
N' irs,  October  1  1,  1872,  p.  32. 

As  to  curative  acts  and  defective  certificates  of  acknowledgment  of 
deeds,    RttiuinUy.  Kreiger  ;   Mm-tou  v.  Smith,  pos/,  2  Dillon. 

1.  Held  the  same  in  Mc/i-ls-  v.  Mrhol.<>,  3  ;Mnn.  (Wis.  ,  174;  and  Slephm- 
soii  V.  misniu  37  Wis  ,  4S2  ;  it  was  also  held  the  same  in  a  case  where  tlie 
warrant  was  issued  under  act  of  .luly  27,  1S42.  lioHe  v.  Bucklaivl,  1 7  111., 
309  ;  also  see,  McEh/iui  v.  Hayk'.i\  2  Port.  (.Ma. J,  14S. 

Under  a  similar  prohibitory  act  of  March  1st,  ISOO,  it  was  held,  that  no 
one  could  take  advantage  of  the  prohibition,  except  the  donee  of  the 
United  states.     ><iit.Hli  v.  Shane,  1    McLean,  22. 

Ihe  fact  that  a  per.son  purchased  the  warrant  before  it  was  issued,  con- 
tiary  to  the  act  of  February  11th,  1S47,  under  which  it  was  issued,  wil 
not  constitute  such  purchaser  a  trustee  of  the  soldier  as  respects  the  land 
entered  with  the  warrant.     Adsii  v.  Smith,  o2  111.,  412. 


5f)4  Merrill  v.  Haktwell. 

Charles  Merrill  v.  Thomas  II.   I1ai;twell. 

SupnMiie  Court  of  Michigan. -April  Terin,    ISC:}.— 11    Michio-an,  ■inn.— 
(Cooley's    Annotated  iteport.) 

Land  warrad.—'Vhe  liokler  of  a  land  warrant  lias  an  absolute  right  to 
locate;  land  with  it.  and  to  a  patent  for  the  Land  located. 

Guaranty  ;  United  States  officer  ;  Ex  parte  action.— VliihitilX  pnrchased  a 
land  warrant  of  defendant,  who  guaranteed  it  ''in  all  respects." 
With  this  warrant,  plamtiti' located  land,  but  he  was  afterwards  noti- 
fied from  the  land  otlice.  that  the  entry  was  suspended  because  the 
( 'ommissioner  of  Pensions  had  canceled  the  warrant  on  the  allega- 
tion that  it  was  issued  on  forged  papers.  PlaintilT  then  brought  suit 
upon  the  guaranty.  It  was  h<la\  that  private  rights  could  not  be 
bound  by  this  ex  parte  and  extrajudicial  proceeding  of  the  connuis- 
sioner,  and  that  this  evidence  did  not  showplaintifl"  oititle  to  recover. 
{ComirM-e  Jloiif/hton  Count t/  V.  Lanl  dinniisswnn:  'iH  Mich..  •270;  Boyre 
V.  Danz.  29  Mich  ,  146.) 

Heard,  April  12th  ;  decided.  April  21st.. 

Case  made  after  judgment  from  Wayne  circuit,  where  M errill 
brought  action  against  Hartwell  on  a  guaranty  in  a  bill  of  sale  of 
land  warrants  in  the  following  words :  "  Guaranteed  in  all 
respects."  Merrill  located  the  warrant  in  question  in  1854.  but 
had  received  no  patent,  when,  in  1862,  he  was  notified  by  the 
register  and  receiver  of  the  land  office  that  the  warrant  was  can- 
celed V)y  the  Commissioner  of  Pensions,  and  the  entry  therefore 
suspended. 

The  cancellment  was  on  the  ground  that  the  warrant,  which 
was  issued  under  the  act  of  Congress  of  September,  1850,  was 
obtained  on  false  and  forged  papers.  Merrill  then  brought  this 
action.     The  circuit  court  gave  judgment  for  defendant. 

./.  E.  Bigelotv  for  plaintiff'. 

D.  C.  Holhrook  for  defendant. 

Campbell.  J. : 

Defendant  is  sued  as  guarantor  of  a  land  warrant  which  he  sold 
with  a  guaranty  "  in  all  respects."  Plaintiff  located  certain  lands 
with  it  in  1854.  and  in  1862  he  was  notified  that  the  entry  was 
suspended  because  the  Commissioner  of  Pensions  had  canceled 
the  warrant.  Suit  is  now  brought  on  the  guaranty  claiming  this 
to  be  a  breach  of  it. 

The  law  of  1850.  under  which  the  warrant  was  issued,  prescribes 


Merrill  /•.  Hartwell.  565 

in  what  way  an  entry  of  lands  may  be  made  on  suoli  a  warrant, 
and  provides  that  '•  upon  the  return  of  suo'li  certificate  or  war- 
rant, witii  evidence  of  tlie  location  thereof  having  been  legally 
made  to  the  General  Land  Office,  a  patent  shall  be  issued  there- 
for," (9  Stat.  U.  S.,  520.  .521),  and  the  warrants  are  made  assign- 
able by  the  statute  of  18r)2,  (10  Stat.  U.  S.,  S). 

Whether  such  a  guaranty  contains  sutHcient  elements  of  cer- 
tainty to  enable  its  holder  to  enforce  it  for  any  liability,  except 
title  and  genuineness,  is  a  question  of  some  nicety.  But  it  cannot 
be  claimed  that  such  a  guaranty  can  go  further  than  to  bind  the 
guarantor  to  the  undertaking  that  the  warrant  is  as  valid  as  any 
other  land  warrant  under  the  statute.  The  statute  giA  es  to  the 
holder  of  every  warrant,  free  from  question,  an  absolute  rigiit  to 
locate  land  under  it ;  and  the  land  otticers  who  refuse  to  respect 
it  are  guilty  of  an  infraction  of  law.  It  can  hardly  be  claimed 
that  this  guaranty  is  a  guaranty  against  official  mistakes  or  mis- 
conduct. Whatever  may  be  the  power  of  any  of  the  public  offi- 
cers in  the  department  to  decline  acting  when  they  suspect  fraud, 
there  is  no  principle  which  can  justify  the  assumption  that  their 
decision  can  divest  private  rights  or  dispose  of  them  finally'  by 
assuming  to  rescind  the  instruments  under  which  these  are  asserted. 
A  court  of  justice  is  not  bound  by  such  ex  parte  and  extrajudicial 
proceedings,  and  must  entirely  disregard  them  :  {Glasgoiv  v.  Hortiz, 
1  Black,  595  ;  Tate  v.  Carney,  24  How.,  357  ;  Dubuque  <^-  Pacific 
R.  R.  Co.,  V.  Litchfield,  23  How.,  66  ;  Arnold  v.  Grimes,  2  Clark, 
(Iowa,)  1  ;  Irvine  v.  Marshall,  20  How.,  558  ;  O'Erieti  v.  Perry, 
1  Black,  132  ;  People  v.  State  Treasurer,  7  Mich.,  366.)  An  entry 
made  on  this  warrant,  if  the  warrant  itself  is  free  from  objection, 
gives  a  right  to  a  patent  under  the  expressed  terms  of  the  law. 

It  is  unnecessary  to  decide  whether  the  assignee  of  a  land  war- 
rant, valid  on  its  face,  can  be  affected  by  frauds  anterior  to  its 
issue  ;  or,  if  he  can  be,  in  what  way  the  validity  of  the  instrument 
is  to  be  assailed.  No  such  attempt  is  made  in  the  case  before  us, 
as  there  is  no  evidence  offered  tending  to  show  fraud  or  forgery. 
The  judgment  below  must  be  affirmed,  with  costs. 

The  other  justices  concurred. 


566  Marks  v.  Dickson. 

James  Makks,    plaintiff   in    error,    v.    Michael    Dickson    and 
Elizabeth  M.  Dickson. 

December    lerm.  18.">7. — 20  Howard  .")01  ;  '2  Miller,  .541. 

Fre-nnpfi'iv . — A.s-si(/iimt"n '  of  Ctrtijicale . 

1.  Under  the  acts  of  Congress  concerning  pre-emption  of  1830  (4  stat- 

utes, 420),  as  amended  .raniiar}%  1S32  (4  Statutes,  4flG),  and  revived 
June  1 834,  (4  Statutes,  670),  a  pre-emptor  could  assign  his  certificate 
of  pre-emption  and  location  after  entry  at  the  land  office. 

2.  Assignments  of  floats  made  before  such  entry  were  void  ;  but  a  power 

to  assign,  though  made  before  the  location,  would  support  an  assign- 
ment under  it  made  after  location. 

This  is  a  writ  of  error  to  the  Supreme  Court  of  Louisiana. 
The  case  is  fully  stated  in  the  opinion. 
Mr.  Benjumin  for  plaintiff"  in  error. 
Mr.  Taylor  for  defendants. 

Mr.  JrsTiCE  Catron  delivered  the  opinion  of  the  court. 

Tliis  cause  is  brought  here  by  a  writ  of  error  to  the  Supreme 
Court  of  Louisiana,  which,  by  its  judgment,  construed  the  acts  of 
Congress  of  1830,  1832,  and  1834,  securing  pre-emption  rights  to 
actual  settlers  on  the  public  lands. 

The  facts  giving  rise  to  the  questions  decided  are  these  :  John 
Butler  and  Elkin  T.  Jones  resided  on  the  same  quarter-section  of 
land,  lying  in  the  parish  of  C'lairi:)orne.  Louisiana,  and  having 
duly  proved  their  residence  on  the  land,  as  required  by  the  acts 
of  Congress,  were  allowed  to  purchase  jointly,  at  the  proi)er  land 
office,  the  quarter-section  on  which  they  resided. 

Being  entitled  to  additional  land.  Jones  and  Butler  obtained  a 
certificate,  known  as  a  float,  authorizing  them  to  enter  a  quarter- 
section.  Butler  sold  his  float  to  Murrill.  in  1837  :  Murrill  sold  to 
Wood  in  1838,  and  Wood  sold  to  Dickson  in  1839.  The  land  was 
located  in  August,  1840,  in  Butler's  name,  by  Bullard,  who  held  a 
power  from  Butler  to  locate  and  sell  it. 

And  in  November,  1840.  Butler,  by  his  attorney  in  fact,  Bullard, 
conveyed  to  William  Dickson.  In  April.  1843.  a  joint  patent 
issued  in  favor  of  Butler  and  Jones  for  the  quarter-section.  In 
1851.  Butler  again  sold  his  undivided  moiety  of  the  land  to  James 
Marks,  and  conveyed  to  him  in  due  form.  The  Supreme  Court  of 
Louisiana  held  that  the  assignment  made  in  August.  1840.  to 
William    Dickson,   was  lawfully  made,   and  that  Marks  had  no 


Marks  v.  Dickson.  567 

equity  to  sustain  his  petition,  in  whicli  lie  demanded  partition  and 
possession.     His  petition  was  dismissed  in  the  JState  Courts. 

If  the  assignment  of  the  entry  to  Dickson  was  valid,  then  tlie 
judgment  below  must  be  affirmed  :  on  the  other  hand,  if  the  assign- 
ment made  l)y  Bullard,  as  Butler's  attorney  in  fact,  was  made  in 
violation  of  the  acts  of  Congress,  then  it  cannot  be  set  up  as  a 
defence  against  the  deed  made  to  Marks  in  1851.  This  is  the 
only  question  that  can  be  revised  here  on  this  writ  of  error  to  the 
proceeding  in  the  Supreme  Court  of  Louisiana.  Its  decision 
depends  on  the  true  meaning  of  the  acts  of  Congress  referred  to. 

The  act  of  1830  (sec.  3),  provides  that  all  assignments  and 
transfers  of  the  riglit  of  pre-emption  given  V)y  that  act,  prior  to 
issuing  of  the  patent,  shall  be  null  and  void.  In  1832,  a  sup- 
plementary act  was  passed,  which  recites  the  act  of  1830.  and 
declares  that  all  persons  wlio  have  purchased  under  the  act  may 
assign  and  transfer  their  certificates  of  purchase  or  final  receipts, 
anything  in  the  act  of  1830  to  the  contrary  notwithstanding. 

The  act  of  June  lit.  1834,  revived  the  act  of  1830,  and  con- 
tinued it  in  force  for  two  years,  without  referring  to  the  act  of 
1832.  If  this  act  was  made  part  of  that  of  1830,  then  the  revival 
of  the  latter  carried  with  it  no  incapacity  in  the  pre-eraptor  to 
assign  his  certificate  of  purchase. 

A  difficulty  arose  in  the  General  Land  Office  as  to  tlie  effect  of 
the  revival  of  the  act  of  1830  by  the  act  of  1834  :  and  wlieth^r 
the  act  of  1830,  as  revived,  included  the  provision  of  the  act  of 
1832.  The  commissioner  referred  the  matter  to  the  Secretary  of 
the  Treasury  for  iiis  decision  :  and  this  officer  presented  the  ques- 
tion to  the  Attorney  General  for  his  official  opinion,  who  decided 
that  tlie  acts  of  1830  and  1832  stood  together  as  one  provision  : 
and  being  revived  by  the  act  of  1834.  the  intention  of  Congress 
was  to  confer  on  tlie  purchaser  the  iiower  to  sell  before  the  patent 
issued. 

This  opinion  was  given  in  iMarcli,  1835.  and  has  been  followed 
at  the  General  Land  Office  ever  since  ;  and  as  Butler's  claim 
originated  under  the  act  of  1834.  it  was  governed  at  the  land 
office  by  that  decision. 

We  think  the  construction  then  given  was,  in  effect,  the  true 
one.  Before  the  prohibition  was  made  by  the  act  of  1830.  tlie 
purchaser,  when  he  had  obtained  his  final  certificate,  acquired 
with  it  a  right  to  sell  the  land  he  had  purchased,  in  all  cases,  nor 
has  that  right  ever  been  questioned  by  Congress,  where  entries 


568  Marks  d.  Dickson. 

had  been  made  in  the  ordinary  oi)erations  of  the  land  ortice  ;  so 
that  the  act  of  18o2  rei)ealed  the  i)rohil)ition  imposed  on  those 
having  a  pre-emption,  and  placed  those  who  purchased  under  it 
on  the  footing  of  other  j)urchasers. 

The  act  of  1832  provided  that  patents  might  issue  to  assignees, 
but  this  provision  does  not  effect  the  present  case,  as  the  transfer 
of  the  entry  was  valid,  and  bound  liutler  from  its  date,  and  vested 
his  equitable  title  in  Dickson  and  ins  heirs,  which  was  not 
defeated  by  the  patent.  Such  would  have  been  the  rights  of  the 
parties  had  the  prohibitory  clause  not  been  passed,  aud  so  tlieir 
rights  stood  after  its  repeal. 

The  object  of  the  legislature  is  manifest.  It  was  intended  to 
prevent  speculation  by  dealings  for  rights  of  preference  before 
the  public  lands  were  in  the  market.  The  speculator  acquired 
power  over  choice  spots,  by  procuring  occupants  to" seat  them- 
selves on  them,  and  who  abandoned  them  as  soon  as  the  land  was 
entered  under  their  pre-emption  rights,  and  the  speculation  accom- 
plished. Nothing  could  be  more  easily  done  than  this,  if  con- 
tracts of  this  description  could  be  enforced.  The  act  of  1830, 
however,  proved  to  be  of  little  avail,  and  then  came  the  act  of 
1838  (5  Stat.,  251),  which  compelled  the  pre-emptor  to  swear  that 
he  had  not  made  an  agreement  by  which  the  title  might  inure  to 
the  benefit  of  any  one  except  himself,  or  that  he  would  transfer  it 
tojanother  at  any  subsequent  time.  This  was  preliminary  to  the 
allowing  of  his  entry,  and  discloses  the  i)olicy  of  Congress,  but 
it  has  no  application  in  this  cause,  as  this  claim  was  founded  on 
the  act  of  1834. 

The  contract  preceding  the  entry  made  by  Butler  with  Murrill 
was  merely  void  :  and  so  were  the  agreements  of  Wood  and 
Dickson  for  the  float,  before  its  location.  But.  after  the  land  was 
entered  by  Butler,  he  had  power  to  affirm  his  contract  of  sale  at 
his  option,  by  conveying  the  land,  and  which  sale  bound  Butler 
and  conclude-s  Marks. 

We' order  that  the  Jvdrfvwtd  of  the  Saprenie   Court  of  Louis- 
Uitiit  he  (iffirnietl,  irith  r,»sts. 

XoTE.— A  power  of  attorney,  coupled  with  an  interest,  was  executed 
by  a  pre-euiptor'  authorizing  the  attorney  to  locate  and  convey  the  land 
to  which  he  was  entitled  under  a  floating  pre-emption  right.  After  the 
land  was  located  the  pre-emptor  died.  Hel'l,  tliat  his  death  revoked  the 
power  of  attorney  to  sell,  because  there  was  no  estate  in  existence  at 
the   time   the   power   was   executed,  with   which   an    interest  could  be 


French  d.  Spencer.  569 

coupled.  It  was  a  power  to  create  an  estate  with  power  to  dispose  of 
such  estate  when  created.  A  conveyance  of  the  land  by  the  attorney 
after  the  death  of  the  pre-emptor  was  void.  Yates  v.  Fi-i/or,  11  Ark.,  58. 
(For  a  full  discussion  of  this  subject,  see  Ilimf  v.  Rousmanief^ s  Adm'r,  S 
Wheaton,  174.) 

In  such  a  case,  the  legislature  may  empower  tlie  administrator  to  exe- 
cute a  valid  conveyance.     Moore  v.  Maxwell^  IS  Ark.,  4G9. 

An  entry  made  by  an  agent  after  the  death  of  the  principal,  but  with 
his  money,  is  valid.  The  heirs  adopt  the  act  of  the  agent  by  bringing 
an  action  for  the  land.     McCiuren  v.  Wicker^  3  Eng.  (Ark.),  192. 


Lesske  of  William  C.  French  and  AVife,  plaintiff  in  error,  v, 
William  H.  Spencer,  .Jr.,  and  others. 

December  Term,  1858.— 21  Howard,  228  ;  2  Miller,  7G0. 

Bounty  Land    Warrants. — Assiynability.    . 

1.  W  hatever  may  be  the  construction  of  the  acts  of  1811,  1812,  as  to  the 

transferability  of  bounty  land  warrants  issued  under  them,  there  is 
nothing  in  the  act  of  1810,  granting  bounties  to  American  citizens 
residing  in  (  anada,  which  forbids  such  tran.'^fer. 

2.  A  deed  which  professed  to  convey  the  land,  and  also  to  be  a  power  of 

attorney,  to  locate  the  warrant  in  the  name  of  the  grantee,  is  valid, 
and  conveys  the  land  wliich  had  really  been  entered  and  located. 
The  location  of  the  specific  warrant  was  sutlicient  to  identify  it. 

3.  Though  the  patent  issued  long  after  the  death  of  the  party  to  whom 

the  warrant  was  issued,  and  in  whose  name  it  was  located,  it  inured 
to  the  benefit  of  the  grantor  in  the  deed  made  by  him. 

4.  This  is  also  true  on  the  principle,  that  where  a  grantor  sets  forth  that 

he  is  seized  of  a  particular  estate  which  he  pui-ports  to  convey,  he 
and  all  claiming  in  privity  with  him,  are  estopped  to  deny  that  he 
was  so  seized  at  the  time  he  made  the  conveyance,  i 

W^RiT  OF  error  to  the  Circuit  Court  for  the  District  of  Indiana. 
The  case  is  stated  in  the  opinion. 
Mr.  Thompson  for  plaintiff'  in  error. 
Mr.  Burnett  for  defendant. 

Mr.  Justice  Catron  delivered  the  opinion  of  the  court. 

Silas  Foso-it  obtained  a  warrant  for  three  hundred  and  twent}' 
acres  of  land  as  a  Canadian  volunteer  in  the  war  of  1812  with 
Great  Britain.  This  warrant  he  caused  to  be  located  in  the  Indi-^ 
ana  Territory,  June  3,   1816.  on   the   land    in  dispute.     On  the- 


570  French  v.  Spencer. 

twenty-eighth  day  of  that  month  he  conveyed  the  land  to  William 
H.  Spencer,  who  died  in  possession  of  the  same  ;  it  descended  to 
his  clnldren  and  heirs,  who  continned  in  possession,  and  are  sned 
in  tliis  action  by  one  of  the  two  heirs  of  Fosgit,  who  died  about 
1823.  A  patent  was  issued  l)y  the  United  States  to  Fosgit,  dated 
in  October,  1816.  A  deed  from  Fosgit  to  Spencer  was  offered  in 
evidence  in  the  circuit  court  on  behalf  the  defendants,  and  was 
objected  to : 

1st.  Because  it  is  void  on  its  face,  being  in  violation  of  the 
acts  of  Congress  touching  the  subject  of  bounty  land  for  military 
services,  and  against  the  policy  of  the  United  States  on  that  sub- 
ject. 

2d.  Because  said  writing,  on  a  fair  legal  construction  of  its 
terms,  convej^s  no  legal  title  (and,  indeed,  no  title  at  all  of  any 
kind)  to  the  lands  in  question  ;  and — 

3d.  Because  said  writing  is  irrelevant  and  incompetent  as  evi- 
dence in  this  cause. 

The  court  overruled  the  objections  and  permitted  the  defend- 
ants to  give  the  writing  in  evidence,  and  instructed  the  jury  that 
it  was  a  complete  defense  to  the  action,  to  all  of  which  the  plain- 
tiff excepted. 

1.  Was  the  writing  void  because  it  was  in  violation  of  acts  of 
Congress  touching  the  sale  of  bounty  lands  before  the  patent  had 
issued  ?  This  depends  on  a  due  construction  of  the  act  of 
1816.  It  gave  to  each  colonel  nine  hundred  and  sixty  acres,  to 
each  major  eight  hundred  acres,  to  each  captain  six  hundred  and 
forty  acres,  to  each  sid)altern  officer  four  hundred  acres,  to  each 
non-commissioned  officer,  musician,  and  private  three  hundred 
and  twenty  acres,  and  to  the  medical  and  otlier  staff  in  proportion 
to  their  pay,  compared  with  that  of  commissioned  officers.  War- 
rants were  ordered  to  be  issued  by  the  Secretary  of  War,  subject 
to  be  located  b}^  the  owner,  in  quarter-sections,  on  lands  within 
the  Indiana  Territory,  surveyed  by  the  United  States  at  the  time 
of  the  location.  And  three  months  additional  pay  was  awarded 
to  tliis  description  of  troops. 

By  the  acts  of  1811.  ch.  10.  1812.  ch.  14,  sec.  12.  and  that  of  the 
May  C,  1812.  eh.  77.  sec.  2.  it  was  provided  that  each  private  and 
non-commissioned  officer,  who  enlisted  in  the  regular  service  for 
five  years  and  was  honorably  discharged  and  obtained  a  certificate 
from  his  commanding  officer  of  his  faithful  service,  should  be 
entitled  to  a  bounty  of  one  hundred  and  sixty  acres  of  land  ;  and 


French  v.  Spencer.  571 

thnt  the  heirs  of  those  who  died  in  service  sliould  be  entitled 
to  the  same,  to  each  of  whom  by  name  a  warrant  was  to  issue. 
The  act  of  May  6.  1812.  provided  for  surveying,  designation,  and 
granting  these  bonnty  lands  :  the  fourth  section  of  which  declares 
that  no  claim  for  military  land  bounties  shall  be  assignable  or 
transferable  until  after  the  patent  has  been  granted;  and  that  all 
sales,  mortgages,  or  contracts  made  prior  to  the  issuing  of  the 
patent  shall  be  void  :  nor  shall  the  lands  be  subject  to  execution 
sale  till  after  the  patent  issues. 

It  is  insisted  that  this  provision  accompanies  and  is  part  of  the 
act  of  181f).  and  several  opinicm^  of  iNIr.  Attorney  General  Wirt 
are  relied  on  to  sustain  the  position  that  the  acts  granting  bounty 
lands  are  in  pi(ri  materia  and  must  be  construed  alike. 

He  gave  an  opinion  in  1810,  (2  L.  L.  and  Opinion  6).  that  a 
land  warrant  issued  to  a  Canadian  volunteer  was  not  assignable 
on  its  face  or  in  its  nature,  and  consequently  that  the  patent 
must  issue  in  the  name  of  the  soldier.  But  he  did  not  decide,  nor 
was  he  called  on  to  do  so.  that  after  the  warrant  had  been  located 
and  merged  in  the  entry  the  equitable  title  and  right  of  posses- 
sion to  the  land  could  not  be  transferred  by  contract. 

The  act  of  1816  involves  considerations  difierent  from  the  pre- 
vious provisions  for  the  protection  of  the  enlisted  common  soldier. 
A  class  of  active,  efficient  American  citizens,  who  had  emigrated 
to  Canada,  were  compelled  to  leave  there  on  the  war  of  1812 
breaking  out :  they  returned  to  their  own  country  and  went  into 
its  service,  and  when  the  war  was  ended,  both  officers  and  soldiers 
were  compensated  in  lands  and  money  for  this  extraordinary  ser- 
vice. The  act  of  Congress  oi'ders  the  warrants  to  be  delivered  to 
the  respective  owners  to  be  located  by  them  :  whereas  the  common 
soldier,  provided  for  in  acts  of  1811  and  1812,  did  not  receive  his 
warrant,  but  the  government  bound  itself  to  locate  the  land  at  its 
own  expense.  Congress  may  have  thought  it  not  at  all  necessary 
to  guard  the  Canadian  volunteers  against  being  overreached  by 
speculators  and  deprived  of  their  bounty  lands.  This,  however, 
is  mere  conjecture.  The  act  of  March  5,  1816,  has  no  reference 
to,  or  necessary  connection  with  ar\y  other  bounty  land  act ;  it  is 
plain  on  its  face  and  single  in  its  purpose.  And  then  what  is 
the  rule  ?  One  that  cannot  be  departed  from  without  assuming  on 
the  part  of  the  judicial  triV)unals  legislative  i)ower.  It  is  that  where 
the  legislature  makes  a  plain  provision,  withont  making  any  excep- 
tion, the  courts  can  make  none.     {Mclver  v.  Reatjan.  2  AVheaton, 


572  French  r.  8penckr. 

2;") ;  Pidtou  v.  McClure.  Martin  and  Yersrers"  Tenn.  H..  345,  and 
cases  cited  :  Cocl^e  c\-  Jacl-  v.  McGiiniis.  Ih.,  3Go  ;  Smith  v.  Troup, 
20  Johns..  33.)  AVe  are  therefore  of  the  opinion  that  Fosgit  could 
sell  and  convey  the  land  to  Spencer  after  the  entry  was  made. 

2.  The  next  ground  of  objection  to  the  deed  is,  that  it  conveys 
no  title  when  fairly  construed.  It  has  a  double  aspect  obviously, 
for  the  reason  that  the  parties  to  it  did  not  know  at  the  time  it 
was  executed  whether  or  not  the  land  had  been  located  by  Fosgit' s 
agent.  The  issuing  of  the  warrant  is  recited  in  the  deed,  antl  the 
quantity  of  land  it  calls  for,  and  then  the  grantor  says  :  •'  For  the 
consideration  of  five  hundred  dollars  I  have  assigned  and  set  over, 
and  by  these  presents  do  grant,  bargain,  sell,  transfer,  assign,  and 
set  over,  to  said  William  II.  Spencer,  his  heirs  and  assigns,  forever, 
the  said  three  hundred  and  twenty  acres  of  land,  to  have  and  to 
hold  the  same  in  as  full  and  ample  mtinner  as  I,  the  said  Silas 
Fosgit,  my  heirs  or  assigns,  might  or  could  enjoy  the  same,  by 
virtue  of  the  said  land  warrant  or  otherwise." 

Then  follows  an  irrevocable  power  from  Fosgit  to  Spencer,  his 
heirs  or  assigns,  to  locate  the  warrant,  obtain  a  patent,  &c. 

The  warrant  having  been  located  on  land  already  surveyed,  it 
could  easily  be  identified.  The  description  is  to  the  same  effect 
as  if  the  deed  had  said,  I  convey  the  land  covered  by  my  warrant 
of  three  hundred  and  twenty  acres. 

We  are,  therefore,  of  the  opinion  that  the  deed  was  a  valid  con- 
veyance of  Fosgit' s  interest  in  the  land  sued  for  at  the  time  the 
deed  was  executed. 

The  third  exception  to  the  deed  is  covered  by  the  foregoing 
aniswers. 

3.  The  charge  of  the.  court  to  the  jury  held,  as  a  matter  of  law, 
that  the  deed  was  a  complete  defense  to  the  action,  and  that  the 
patent  issued  to  Fosgit  related  back  to  the  location  of  the  warrant, 
and  constituted  part  of  Spencer's  title. 

This  consideration  involves  a  (luestion  of  great  practical  im- 
portance to  States  and  territories  where  entries  exist  on  which 
patents  have  not  issued,  as  sales  of  such  titles  are  usual  and 
numerous.  The  incipient  state  of  such  titles  lias  not  presented 
any  material  inconvenience,  as  it  is  usually  provided  by  State 
laws  thai  suits  in  ejectment  may  be  prosecuted  or  defended  by 
virtue  of  the  title. 

In  Indiana  it  is  provided  by  statute  that,  -every  certificate  of 
purchase  at  a  laud  ()ffi<'<'  of  the   United    States   shall  be  evidence 


Frknch  v.  Spencer.  n78 

of  legal  title  to  the  hind  therein  descrilied"' — that  is  to  sav.  for 
the  purposes  of  alienation  and  transfer  ;  and  for  the  purposes  of 
liti<2;ating  rights  of  property  and  possession  a  certificate  of  pur- 
chase shall  be  treated  as  a  legal  title,  and  to  this  effect  it  is  com- 
petent evidence  in  an  action  of  ejectment.  {Smith  v.  Moslcr.  5 
Black  R.,  51.) 

After  the  patent  issued,  this  title  was  exclusively  subject  to  State 
regulations  in  so  far  as  remedies  were  provided  for  its  euforce- 
nient  or  i)rotection.  and  therefore  no  objection  can  be  made  to 
any  State  law  that  does  not  impugn  the  title  acquired  from  the 
Uuited  States. 

Whether  the  patent  related  back  in  support  of  Spencers  deed 
is  not  a  new  question  in  this  court.  It  arose  in  the  case  of  Lawles 
V.  Bmvt  (10  How..  372).  where  it  was  held  that  a  patent  issued  in 
184:1  "to  Claymorgan  and  his  heirs."  by  which  the  heirs  took  the 
legal  title,  related  back  and  inured  to  the  protection  of  a  title 
founded  on  a  sheriff's  sale  of  Claymorgan' s  equitable  interest 
made  in  1808.  There,  as  here,  the  contest  was  between  the 
grantee's  heirs  and  the  purchaser  of  the  incipient  title  ;  the  court 
holding  that  when  the  patent  issued  it  related  to  the  inception  of 
title,  and  must  be  taken,  as  between  the  parties  to  the  suit,  to 
bear  date  with  the  commencement  of  title.    ■ 

It  is  also  the  settled  doctrine  of  this  court  that  an  entry  in  a 
United  States  land  office  on  which  a  patent  issues  (no  matter  how 
long  after  the  entry  is  made)  shall  relate  to  the  entry,  and  take  date 
with  it.  (Ros.s-  V.  Borland.  1  Peters,  655.)  The  fiction  of  relation 
is  that  an  intermediate  bona  Jide  alienee  of  the  incipient  interest 
may  claim  that  the  jiatent  inures  to  his  benefit  by  an  ex  post  facto 
operation,  and  receive  the  same  protection  at  law  that  a  court  of 
equity  could  afford  him. 

4.  We  hold  that,  on  another  ground,  the  instruction  was  clearly 
p  roper. 

Here  the  after-acquired  naked  fee  is  set  up  to  defeat  Fosgit/s 
deed,  made  forty  years  ago  in  good  faith,  for  a  full  consideration, 
and  to  oust  the  possession  of  Spencer's  heirs  holding  under  that 
deed.  The  rule  has  always  been  that  where  there  was  a  warranty 
or  covenants  for  title  that  would  cause  circuity  of  action  if  the 
vendee  was  evicted  by  the  vendor,  then  the  deed  worked  an 
estoppel. 

But  the  rule  has  been  carried  further,  and  is  now  established 
that  where  the  grantor  sets  forth  on  the  face  of  his  conveyance,  by 


574  Maxwell  c.  Moore. 

averment  or  reeitul,  tliat  he  is  seized  of  a  particular  estate  in  tlie 
premises,  and  which  estate  the  deed  purports  to  convey,  the 
grantor  and  all  persons  in  privity  with  him  shall  be  estopped  from 
ever  afterwards  denying  that  he  was  seized  and  possessed  at  the 
time  he  made  the  conveyance.  The  estoppel  works  upon  the 
estate,  and  binds  an  after-acquired  title  as  between  parties  and 
privies.  {Van  Rensselear  v.  Kearney,  11  How..  325  :  Landes  w 
Brant,  10  How.,  374.) 

It  follows  that  the  heir  of  P^osgit  is  estopped  by  her  father's 
deed  from  disturbing  the  title  or  possession  of  Spencer's  heirs. 
It  is  ordered  that  the  judgment  of  the  circuit  court  be  affirmed. 

Note. — 1.  It  was  held  the  same  m  Sinddar.l  v.  Cli'iinhi-r.-:,  •>  How.,  2S4» 
and'hiniie  V.  Irvine.,  9  Wallace,  617. 

A  mortgagor  is  estopped  from  denying  liis  seisin  in  a  suit  to  foreclose 
the  mortgage.     Bush  v.  MarshaU.,  f!  How..  ■2"^4. 

Also  see,  Henskaw  v.  Bisseil,  18  Wallace,  "Jo."),  and  jL-dirf/ii/  v.  Munu^ 
19  Wallace,  20. 


David  Maxwell  and  otheks,  plaintiffs  in  error,  v.  Israel  M. 
'  Moore  axd  others. 

December  Term,  18.59,— 22  Howard,  185.— 3  Miller,  28.5. 

Jurisdiction  over  State  Courts. — Acts  of  Congress  Construed. 

Where  the  act  of  Congress  of  1 812,  giving  bounty  lands  to  regular  soldiers, 
made  all  sales  void  before  the  patent  issued,  and  anotlier  act  of  1826 
permitted  the  soldier  to  relinquish  the  land  already  patented  and 
make  a  new  location.  Held,  that  the  restriction  on  sale  of  the  right 
to  relocate  did  not  exist,  as  nothing  was  said  to  that  purport  in  the 
act  of  1826. 

Thls  is  a  writ  of  error  to  the  Supreme  Court  of  Arkansas.     The 
case  is  fully  stated  in  the  opinion. 
Mr.  Foivler  for  plaintiffs  in  error. 
Mr.  Watlxdas  for  defendants. 

Mr.  Justice  Catron  delivered  the  opinion  of  the  court. 

This  cause  is  brought  before  us  by  a  writ  of  error  to  the  Supreme 
Court  of  Arkansas,  and  presents  a  single  question  for  our  con- 
sideration. 

Allen  McVey  served  as  a  regular  soldier  in  tlie  war  of  1812.  and 


Maxwkll  c.  Moore.  575 

was  entitled  to  a  tract  of  160  acres  of  land  as  a  bounty  for  his 
services.  The  land  was  located  and  granted  in  what  is  now  the 
State  of  Arkansas.  By  the  act  of  May  6,  1812,  which  granted 
the  bounty  lands,  all  sales  or  agreements  made  by  a  grantee  of 
these  lands  before  the  patent  issued,  wei'e  declared  to  be  void. 

Many  tracts  of  the  lands  granted  turned  out  to  be  unfit  for  culti- 
vation, so  that  the  soldier  took  no  benefit ;  and  as  compensation, 
the  act  of  INIay  22.  1826,  declares  that  the  soldier  or  his  heirs,  to 
whom  bounty  land  has  been  patented  in  the  Ten'itory  of  Arkansas, 
and  which  is  unfit  for  cultivation,  and  who  has  removed  or  shall 
remove  to  Arkansas  with  a  view  to  actual  settlement  on  tlie  land, 
may  relinquish  it  to  the  United  States,  and  enter  a  like  quantity 
elsewhere  in  the  district,  which  may  be  patented  to  him.  This 
act  was  continued  in  force  bv  that  of  May  27th,  1840. 

]McVey  surrendered  his  first  patent  according  to  the  act  of  1826, 
and  in  1842  another  issued  in  his  name  for  the  land  in  dispute. 

In  1834,  McVey  gave  William  Pelham  a  bond  to  convey-  to  him 
the  land  that  might  be  entered  on  his  certificate  of  surrender, 
(known  as  a  float),  and  a  power  of  attorney  to  locate  the  same,  and 
obtain  the  patent.  McVey  died  in  1836.  In  1842,  Pelham  entered 
the  land  in  controversy  in  McVey's  name. 

A  special  act  of  the  legislature  of  the  State  of  Arkansas  was 
passed,  authorizing  McVey's  administrator  to  convej'  the  land  to 
Pelham,  which  was  done. 

Afterwards,  the  plaintiffs  in  error  obtained  a  conveyance  from 
the  heirs  of  McVey,  on  which  their  action  of  ejectment  is  founded. 
As  the  title  vested  in  Allen  McVe3''s  heirs  by  the  patent  of  1842, 
they  could  well  convej^  the  land  unless  the  administrator's  deed 
stood  in  the  way.  {Gallozuay  v.  Fiadley,  13  Peters,  264.)  That 
the  special  act  of  assembly  authorized  the  administrator  to  make 
a  valid  deed,  and  divest  the  title  of  the  heirs,  was  decided  in  this 
case  by  the  Supreme  Court  of  Arkansas,  and  which  decision  on 
the  effect  of  the  State  law  is  conclusive  on  this  court.  We  exer- 
cise jurisdiction  to  revise  errors  committed  by  State  courts,  where 
the  plaintiff  in  error  claims  title  by  force  of  an  act  of  Congress, 
and  the  title  has  been  rejected  on  the  ground  that  the  act  did  not 
support  it.  And  this  raises  the  question,  whether  the  act  of  1826, 
allowing  the  soldier  to  exchange  his  land,  carried  with  it  the  pro- 
hibition against  alienation  contained  in  the  act  of  1812. 

The  court  below  held  that  it  did  not,  and  that  Allen  McVey  did 
lawfully  bind  himself  to  Pelham  for  title. 


576  Doe  v.  Wilson. 

It  is  insisted  tluit  the  acts  of  1812  and  1«"2().  are  on  the  same 
subject,  must  stand  together  as  one  provision,  and  the  last  act 
carry  with  it  the  prohibition  found  in  tlie  first. 

We  are  of  the  opinion  that  the  acts  have  no  necessary  con- 
nection :  that  there  was  no  good  reason  why  the  soldier  who 
removed  to  Arkansas,  and  inspected  his  tract  of  land,  then  pat- 
ented, and  alienable,  shoidd  not  contract  to  convey  the  tract  he 
might  get  in  exchange.  We  can  onl}^  here  sa3%  as  we  did  in  the 
case  of  French  v.  Spencer,  (21  How.,  238).  that  the  act  of  1826  is 
plain  on  its  face  and  single  in  its  purpose  ;  and  that  in  such  cases 
the  rule  is,  that  where  the  legislature  makes  a  plain  provision-, 
without  making  any  exception,  the  courts  of  justice  can  make 
none,  as  it  would  be  legislating  to  do  so. 

There  being  no  other  question  presented  by  the  record  witliin 
the  jurisdiction  conferred  on  this  court  by  the  25th  section  of  the 
judiciary  act,  we.  order  that  the  judgment  of  the  Supreme  Court 
of  Arkansas  be —  Affirmed. 


John  Uoe,   ex  dem.  Manx  and   Hannah,  plaintiffs'  in  error,  v. 
William  Wilson. 

December  Term,  1S.59.— 28  Howard,  457  ;  H  Miller.  6o4. 

Special  Reserve  to  Iwiians  in  a  Treaty. — Deed  of  Reserved  Right  Valid. 

1.  When,  by  the  treaty    of   October  27,  18:52,    with  tht-  Pottawatomie 

Indians,  the  tribe  surreudered  all  their  rights  to  the  lands  then  ceded, 
and  the  United  States  agreed  that  certain  quantities  should  be 
reserved  to  particular  Indians,  these  latter  became  tenants  in  com- 
mon with  the  government  of  the  title  in  fee.  until  the  President, 
after  surveys  were  made,  should  locate  these  reservations. 

2.  In  the  absence  of  anything  in  the  treaty,  or  any  act  of  »  ongress  to 

prevent  it,  the  individual  hulian  could  sell  and  convey  this  titlf  as 
fully  as  any  other  person. 
.3.  Such  a  conveyance,  made  before  the  survey  and  the  selection  by  the 
President,  and  the  issue  of  the  patent,  would  attach  to  the  land  when 
patented  ;  and  the  recital  in  the  patent  that  it  was  for  the  land 
reserved  for  that  individual  Indian,  would  be  conclnsivf  in  favor  of 
the  purchaser  as  to  its  identit,y. 

Writ  of  ekror  to  the  Circuit  Court  for  the  District  of  Indiana. 
The  case  is  well  stated  in  the  opinion. 
Mr.  Baxter  for  plaintiff  in  error. 
Mr.  Niles  for  defendant. 


Doe  v.  "Wilson.  577 

Mk.  Justk  e  Cateok  delivered  the  opinion  of  the  court. 

By  the  treaty  of  October  27,  1832,  made  by  the  United  States, 
through  commissioners,  with  the  Pottawatomie  tribe  of  Indians  of 
the  State  of  Indiana  and  Michigan  territory,  said  nation  ceded  to 
the  United  States  their  title  and  interest  in  and  to  their  lands  in 
the  States  of  Indiana  and  Illinois,  and  the  Michigan  territory, 
south  of  Grand  river. 

Many  reservations  were  made  in  favor  of  Indian  villagers 
jointh",  and  to  individual  Pottawatomies.  The  reservations  are 
by  sections,  amounting  probably  to  a  hundred,  lying  in  various 
parts  of  the  ceded  countr}- .  As  to  these,  the  Indian  title  remained 
as  it  stood  before  the  treaty  was  made ;  and  to  complete  the  title 
to  the  reserved  lands,  the  United  States  agreed  that  they  would 
issue  patents  to  the  respective  owners.  One  of  these  reservees 
was  the  chief,  Pet-chi-co,  to  whom  was  reserved  two  sections.  The 
treaty  also  provides,  that  "the  foregoing  reservations  shall  be 
selected  under  the  direction  of  the  President  of  the  United  States, 
after  the  land  shall  have  been  surveyed,  and  the  boundaries  shall 
correspond  with  the  public  surveys." 

In  February,  1833,  by  a  deed  in  fee  simple,  Pet-chi-co  conveyed 
to  Alexis  Coquillard  and  David  H.  Colerick.  of  the  State  of 
Indiana,  "all  those  two  sections  of  land  lying  in  the  State  afore- 
said, in  the  region  of  countrj'  or  territory  ceded  b}^  the  treaty  of 
27th  October,  1832."'  The  grantor  covenants  that  he  is  lawful 
owner  of  the  land  ;  hath  good  right  and  lawful  authority  to  sell 
and  convey  the  same.  And  he  furthermore  warrants  the  title 
against  himself  and  his  heirs.  Under  this  deed  the  defendant 
holds  possession. 

The  lessors  of  the  plaintiff  took  a  deed  from  Pet-chi-co' s  heirs, 
dated  in  1855,  on  the  assumption  that  their  ancestor's  deed  was 
void  ;  he  having  died  iii  1833,  before  the  lands  were  surveyed  or 
the  reserved  sections  selected.  And  on  the  trial  below,  the  court 
was  asked  to  instruct  the  jury  "that  Pet-chi-co  held  no  interest 
under  the  treaty  in  the  lands  in  question,  up  to  the  time  of  his 
death,  that  was  assignable  ;  he  having  died  before  the  location  of 
the  land,  and  before  the  patent  issued." 

This  instruction  the  court  refused  to  give  ;  but,  on  the  contrary, 
charged  the  jury,  that  "the  description  of  the  land  in  the  deeds 
from  Pet-chi-co  to  Coquillard  and  Colerick,  from  Colerick  to  Coquil- 
lard, and  from  Coquillard  to  Wilson  are  sufficient  to  identify  the 
land  therebj'  intended  to  be  conveyed  as  the  same  two  sections 

37 


578  Dob  r.  Wilson. 

of  land   wliicli   are   in   controversy  in   this   suit,  and  which   are 
described  in  the  patents  which  have  been  read  in  evidence." 

It  is  assumed  that  the  lands  embraced  by  the  patents  to 
Pet-chi-co,  made  in  1837,  do  not  lie  within  the  section  of  country 
ceded  by  the  treaty  of  27th  October,  1832;  and.  therefore,  the 
court  was  asked  to  instruct  the  jury  that  the  defendants  cannot 
claim  nor  hold  the  land  as  assignees  of  Fet-chi-co  by  virtue  of  the 
treaty.     The  demand  for  such  instruction  was  also  refused. 

There  is  no  evidence  in  the  record  showing  where  the  land 
granted  by  the  patents  lies,  except  that  which  is  furnished  by  the 
patents  themselves.  They  recite  the  stipulation  in  the  treaty  in 
Pet-chi-co's  behalf:  that  the  selections  for  him.  of  sections  nine 
and  ten.  had  been  made,  "as  being  the  sections  to  which  the  said 
Pet-chi-co  is  entitled,"  under  the  treaty.  The  recitals  in  the 
patents  conclude  all  controversy  on  this  point. 

The  only  question  presented  by  the  record  that  we  feel  ourselves 
called  on  to  decide  is,  whether  Pet-chi-co's  deed  of  February, 
1833,  vested  his  title  in  Coquillard  and  Colerick. 

The  Pottawatomie  nation  was  the  owner  of  the  possessory  right 
of  the  country  ceded,  and  all  the  subjects  of  the  nation  were 
joint  owners  of  it. 

The  revervees  took  by  the  treaty,  directly  from  the  nation, 
the  Indian  title ;  and  this  was  the  right  to  occupy,  use.  and 
enjoy  the  lands  in  common  with  the  United  States,  until  partition 
was  made  in  the  manner  prescribed.  The  treaty  itself  converted 
the  reserved  sections  into  individual  property.  The  Indians  as  a 
nation  reserved  no  interest  in  the  territory  ceded  ;  but  as  a  part 
of  the  consideration  for  the  cession,  certain  individuals  of  the 
nation  had  conferred  on  them  portions  of  the  land,  to  which  the 
United  States  title  was  either  added  or  promised  to  be  added  ;  and 
it  matters  not  which  for  the  purposes  of  this  controversy  for 
possession. 

The  United  States  held  the  ultimate  title,  charged  with  the  right 
of  undisturbed  occupancy  and  perpetual  possession,  in  the  Indian 
nation,  with  the  exclusive  power  in  the  government  of  acquiring 
the  right.  {Johnson,  v.  Me  Tntosh.  8  Wheat.,  603  ;  Comet  v.  Winton, 
2  Yergers  R.,  147.) 

Although  the  government  alone  can  purchase  lands  from  an 
Indian  nation,  it  does  not  follow  that  when  the  rights  of  the 
nation  are  extinguished,  an  individual  of  the  nation  who  takes  as 
private  owner  cannot  sell  his  interest. 


Crews  c.  Burcham.  579 

The  Indian  title  is  [)roperty,  and  alienable,  unless  the  treaty- 
had  prohibited  its  sale.  {Comet  v.  Wintou,  2  Yergers  R..  148; 
Blair  and  Johnson  v.  Pidhkillef  s  Lessee,  2  Yerger,  414.) 

So  far  from  this  being  the  case  in  the  instance  before  us,  it  is 
manifest  that  sales  of  the  reserved  sections  were  contemplated,  as 
the  lands  ceded  were  forthwith  to  be  surveyed,  sold,  and  inhabited 
by  a  white  population,  among  whom  the  Indians  could  not  remain. 

We  hold  that  Pet-chi-co  was  a  tenant  in  common  with  the  United 
States,  and  could  sell  his  reserved  interest ;  and  that  Mhen  the 
United  States  selected  the  lands  reserved  to  him,  and  made  par- 
tition (of  which  the  patent  is  conclusive  evidence),  his  grantees 
took  the  interest  he  would  have  taken  if  living. 

We  order  the  Jvjhjwent  to  be  ajfirvied. 


Crkws  and  SiiKiiiiAx.  appellants,  r.  Btkcham  and  others. 

December  Term,  1861.— 1   Black,  352  ;  4  Miller,  499. 

Indian   Title  in  Reserve  of  Treaty. 

1.  A  reservee  under  the  treaty  with  the  Pottawatomie  Indians  of  1832  has 

an  inchoate  equitable  title  to  the  land  reserved,  and  though  its  locality 
is  only  ascertained  after  the  President  shall  have  located  and  desig- 
nated it.  it  is  still  subject  to  valid  sale  and  assignment  by  the  reservee. 

2.  Where  the  patent  issues  in  such  ease  to  the  reservee  from  the  United 

States  during  tlie  life  of  the  grantee,  it  enures  to  the  benefit  of  his 
assignee  or  grantee,  and  if  after  liis  death,  the  same  result  follows, 
under  the  act  of  May  20,  1836.     .5  U.  S.  Stats..  31. 

3.  Though  the  legal  title  be  in  complainant  in  a  bill  in  chancery,  it  can 

be  maintained  to  quiet  title,  to  relieve  it  of  clouds,  and  to  prevent 
multiplicity  of  litigation. 

4.  The  question  whether  the  land,  as  patented,  lies  within  the  original 

treaty  lauds,  cannot  be  raised  by  any  one  but  the  United  States 

5.  Purchasers  from  the  heirs  of  the  reservee  cannot  claim  to  be  innocent 

purchasers  without  notice,  wlien  the  deed  of  reserA'ee  was  on  record. 

6.  Doe  d  al.  v.  Wilson,  23  How.,  457  (3  Miller.  654),  commented  on  and 

explained. 

Appeal  from  the  Circuit  Court  for  the   Northern  District  of 
Illinois. 

The  (!ase  is  well  stated  in  the  oi)inion. 

Mr.  Armington,  and  Mr.  Baxter  for  appellants. 

Mr.  CorUsle  and  Mr.  Niles  for  appellee. 


580  Crews  v.  Burcham. 

Mil.  JrsTiCE  Nelson  deliA-ered  the  oj)iiiioii  of  the  court. 

This  bill  was  filed  by  the  appellees,  the  com  plain  ants  below, 
against  the  defendants,  to  enjoin  a  snit  at  law  to  recover  a  part 
of  fractional  section  24,  in  township  31,  Illinois.  Hy  a  treaty 
with  the  Pottawatomie  tribe  of  Indians  of  October  27,  1832,  the 
nation  ceded  to  the  United  States  all  their  lands  in  Illinois  and 
other  States,  subject  to  certain  reservations,  for  which  patents 
were  to  be  issued.  Provision  was  made  in  the  treaty  that  the 
reservations  should  be  selected  under  the  direction  of  the  Presi- 
dent of  the  United  States  after  the  land  was  survej^ed,  and  the 
boimdaries  should  correspond  with  the  public  survey.  Francis 
Besion,  a  member  of  the  tribe,  was  a  reservee  of  one  half-section 
of  land  under  this  treaty.  As  we  have  said,  the  treat}'  bears  date 
27th  October,  1832.  On  the  4th  of  February  following  Besion 
conveyed,  for  a  valuable  consideration,  all  his  right  and  interest 
in  the  half-section  to  William  Armstrong,  under  whom  the  com- 
plainants below  derive  their  title.  The  selection  of  the  half-sec- 
tion was  made  by  the  President  in  pursuance  of  the  treaty,  and 
a  patent  was  issued  on  the  17th  February,  1845,  for  the  same  to 
Besion  and  his  heirs,  with  an  habendum  clause,  "to  have  and  to 
hold  the  said  tract,  with  the  appurtenances,  unto  the  said  Francis 
Besion,  his  heirs  and  assigns."  Besion  died  in  1843,  before  the 
issuing  of  the  patent.  The  defendants  set  up  a  title  to  the  tract 
under  conveyances  from  the  heirs  of  tlie  reservee,  claiming  that 
the  deed  from  him  to  Armstrong  carried  with  it  no  right  or  title 
to  the  half-section  which  was  subsequently  selected  and  patented. 
The  decree  of  the  court  below  was  in  favor  of  the  complainants, 
enjoining  the  suit  at  law,  and  restraining  the  institution  of  others 
for  the  purpose  of  quieting  the  title. 

The  main  and  controlling  questions  involved  in  this  case  were 
before  the  court  in  the  case  of  Doe  et  al.  v.  Wilson,  reported  in 
23  How.,  457,  which  arose  under  a  reservation  in  this  treaty  in 
behalf  of  the  chief  Pet-chi-co. 

It  was  there  held  that  the  reservation  created  an  equitable 
interest  to  the  land  to  be  selected  under  the  treaty ;  that  it  was 
the  subject  of  sale  and  conveyance  ;  that  Pet-chi-co  was  compe- 
tent to  convey  it ;  and  that  his  deed,  upon  the  selection  of  the 
land  and  the  issue  of  the  patent,  operated  to  vest  the  title  in  his 
grantee. 

It  is  true  that  no  title  to  the  particular  lands  in  question  could 
vest  in  the  reservee  or  in  his  grantee  until  the  location  by  the 


Crews  i'.  Burcham.  581 

President,  and,  perhaps,  the  issuins>;  of  the  jjatent ;  l)ut  the  obliga- 
tion to  make  the  selection  as  soon  as  the  lands  were  surveyed 
and  to  issue  the  patent  is  absolute  and  imperative,  and  founded 
upon  a  valuable  and  meritorious  consideration.  The  lands  reserved 
constituted  a  part  of  the  compensation  received  by  the  Pottawato- 
mies  for  the  relinquishment  of  their  right  of  occupanc}'  to  the 
government.  The  agreement  was  one  which,  if  entered  into  by 
an  individual,  a  court  of  chancery  would  have  enforced  by  com- 
pelling the  selection  of  the  lands  and  the  conveyance  in  favor  of 
the  reservee  :  or,  in  case  he  had  parted  with  his  interest,  in  favor 
of  his  grantees  ;  and  the  obligation  is  not  the  less  imperative  and 
binding  because  entered  into  by  the  government.  The  equitable 
right,  therefore,  to  the  lands  in  the  grantee  of  Besion,  when 
selected,  was  perfect :  and  the  only  objection  of  any  plausibility 
is  the  technical  one  as  to  the  vesting  of  the  legal  title. 

The  act  of  Congress  May  20.  1886  (5  U.  S.  St.,  31),  provides  : 
"That  in  all  cases  where  patents  for  public  lands  have  been  or 
msLj  hereafter  be  issued  in  pursuance  of  any  law  of  the  United 
vStates  to  a  person  who  had  died,  or  who  shall  hereafter  die,  before 
the  date  of  such  patent,  the  title  to  the  land  designated  therein 
shall  inure  to,  and  become  vested  in.  the  heirs,  devisees,  or  assigns 
of  such  deceased  patentee,  as  if  the  patent  liad  issued  to  the  de- 
ceased person  during  life." 

We  think  it  quite  clear,  if  this  patent  had  issued  to  Besion  in  his 
lifetime,  the  title  would  have  inured  to  his  grantee.  The  deed  to 
Armstrong  recites  the  reservation  to  the  grantee  of  the  half-sec- 
tion under  the  treaty,  and  that  it  was  to  be  located  by  the  Presi- 
dent after  the  lauds  were  surveyed  ;  and  then,  for  a  valuable  con- 
sideration, the  grantee  conveys  all  his  right  and  title  to  the  same, 
with  a  full  covenant  of  warranty.  The  land  is  sufficiently  identi- 
fied to  which  Besion  had  the  equitable  title,  which  was  the  subject 
of  the  grant,  to  give  operation  and  effect  to  this  covenant  on  the 
issuing  of  the  patent  within  the  meaning  of  this  act  of  Congress. 
The  act  declares  the  land  shall  inure  to,  and  become  vested  in,  the 
assignee,  the  same  as  if  the  patent  had  issued  to  the  deceased  in 
his  lifetime. 

The  warranty-  estops  the  grantee  and  all  persons  in  privity  with 
him  from  denying  that  he  was  seized.  The  estoppel  works  upon 
the  estate,  and  binds  the  after-acquired  title  as  between  parties 
and  privies.     (11  How.,  325;  21  lb.,  228.) 

Some  expressions  in  the  opinion  delivered  in  the  case  of  Doe  v. 


582  Gilbert  r.  Thompson. 

Wilson,  the  first  case  that  came  before  us  arising  out  of  this  treaty, 
were  the  subject  of  observation  by  the  learned  counsel  for  the 
appellant  in  the  argument,  but  which  were  founded  on  a  misap- 
prehension of  their  scope  and  purport.  It  was  supposed  that  the 
court  had  held  that  the  reservee  was  a  tenant  in  common  with  the 
United  States  after  the  treaty  of  cession,  and  until  the  surveys 
and  patent.  It  will  be  seen,  however,  that  the  tenancy  in  com- 
mon there  mentioned  referred  to  the  right  to  occupy,  use,  and 
enjoy  the  lands  in  common  with  the  government,  and  had  no  rela- 
tion to  the  legal  title. 

An  objection  was  taken  tliat  a  portion  of  the  half-section  em- 
braced in  the  patent  to  Besion  did  not  lie  within  the  district  of 
country  ceded  by  the  treat3\  The  same  objection  was  taken  in 
the  case  of  Doe  v.  Wilson,  and  the  answer  given  was  the  recitals 
in  the  patent,  that  the  sections  were  those  selected  by  the  Presi- 
dent, and  to  which  the  reservee  was  entitled  under  the  treaty,  were 
conclusive  on  the  point ;  and  we  may  add,  that  certainly  no  third 
party  has  any  right  to  complain  if  the  facts  were  as  alleged. 

An  objection  was  also  taken  that  if  the  complainants  held  the 
legal  title  to  the  premises  in  question,  their  remedy  was  at  law, 
and  not  in  equity ;  but  the  answer  is,  that  the  bill  was  filed  by 
the  complainants,  among  other  things,  to  relieve  their  title  from 
the  embarrassment  of  the  adverse  claims  set  up  under  the  deeds 
from  the  heirs  of  Besion,  and  also  to  restrain  a  multiplicity  of 
suits.  It  appears  that  a  portion  of  the  land  has  been  laid  out  in 
town  lots,  which  are  held  under  the  complainant's  title. 

A  further  objection  was  taken  that  the  defendants  are  bona  fide 

purchasers  for  a  valuable  consideration  ;  but  the  answer  is,  that 

the  deed  from  Besion  to  Armstrong,  which  referred  specially  to 

this  reserved  right  to  the  half-section,  was  duly  recorded  before 

the  purchase  of  the  defendants  ;  and  besides,  those  deriving  title 

under  this   deed  to  Armstrong  were  in  possession  of  the  tract, 

claiming  title  to  the  whole  at  the  time,  which  operated  as  notice 

to  the  subsequent  purchasers. 

The  decree  of  the  covrt  belov  nffirwed. 


Georok  W.  Gilbkrt  et  al.  v.  George  Tiiompsok. 

Supreme  Court  of  Minnesota,  July  Term,  18H9.— 14  Minneso:a,  544. 

FiKST.   A  simple  power  of  attorney  to  sell  land,  executed  by  a  Sioux 


Gilbert  v.  Thompson.  583 

half-breed,  isgood  till  revoked,  and  will  extend  to  land  subsequently 

acquired  by  means  of  scrip,  issued  under  the  act  of  Congress  of  July 

17,  1854,  if  such  land  come  within  its  terms. 
Second.  Such  power  of  attorney  cannot  be  defeated  by  parol  proof  that 

by  it  the  parties  intended  to  effect  a  transfer  of  tlie  scrip. 
Third.  A  party  objecting  to  the  introduction  of  evidence,  must  state 

his  point  so  definitely,  that  the  court  may  intelligently  rule  upon  it, 

and  that  the  opposite  party  may,  if  the  case  will  admit  of  it,  remove 

the  objection  by  other  evidence. 

This  action  was  commenced  in  the  District  Court  for  Wabasha 
county.  The  complaint  alleges  title  in  fee,  and  right  of  possesion 
in  the  plaintiff,  to  certain  real  estate  in  said  countj^ ;  that  the 
defendant  is  wrongfully  in,  and  unlawfully  withholds  the  posses- 
sion, and  demands  judgment  for  possession,  &c.  The  defendant 
answered  admitting  possession,  denying  all  the  other  allegations 
of  the  complaint,  and  avering  title  in  himself. 

The  cause  was  tried  before  the  court,  assisted  by  a  jur}-.  It 
appeared  on  trial,  that  botli  parties  claimed  title  through  one 
Amelia  INIonette,  who  was  the  original  grantee  of  the  United  States, 
and  a  lialf-breed  of  the  Dakota  or  Sioux  Indians. 

The  plaintiffs  claimed  through  a  deed  from  said  Amelia  dated 
May  29.  1867.  and  possession  in  the  defendant  being  admitted, 
they  introduced  this  deed  in  evidence  and  rested.  The  defendant 
claimed  through  a  conveyance  from  the  said  Amelia,  executed  by 
her,  by  her  attorney  in  fact.  Benjamin  Lawrence,  dated  Juh'  18, 
1857.  ' 

He  offered  this  deed  in  evidence.  The  plaintiff  objected  to  its 
reception  on  the  ground  "  that  it  was  not  executed  in  form  to  admit 
to  record  ;  that  in  form  the  deed  was  an  absolute  nullity,  as  it  was 
not  in  the  form  required  for  conveyances  of  real  estate  ;"  the 
court  overruled  the  objection,  the  deed  was  introduced,  and  plain- 
tiffs excepted.  The  defendent  also  introduced  the  power  of 
attorney  from  the  said  Amelia  to  said  Benjamin  Lawrence,  under 
which  this  deed  was  executed,  dated  May  27,  1857.  This  power 
of  attorney  authorized  the  said  Lawrence  to  act  for  tlie  said 
Amelia  as  follows  :  For  me  and  in  my  name,  to  enter  into  and 
take  possession  of  all  the  real  estate  belonging  to  me,  or  of  which 
I  may  hereafter  become  seized,  situated  in  the  county  of  Wabasha, 
in  the  Territor}'  of  Minnesota ;  and  for  me  to  lease,  bargain,  sell, 
grant  and  confirm  the  wliole,  or  any  part  thereof,  *  *  *  * 
and  for  me  and  in  my  name,  to  make,  execute,  acknowledge,  and 
deliver    unto    the    purchaser   or    purchasers    thereof,    good    and 


584  Gilbert  v.  Thompson. 

sufficient  conveyances,  &c.  After  introducinj>;  this  i)ower  of  attor- 
ney and  deed,  the  defendant  rested. 

The  plaintiff  then  offered  to  prove  that  the  said  Amelia,  as  a 
half-breed  . of  the  Dakota  or  Sioux  Indians,  received  from  the 
United  States  certificates  or  scrip,  issued  under  the  act  of  Congress 
of  July  17, 1854,  that  at  the  date  of  the  power  of  attorney  in  evidence 
she  transferred  and  delivered  to  one  A.  P.  Foster  said  scrip,  for 
a  money  consideration  ;  that  the  power  of  attorney  was  executed 
and  delivered  to  said  Foster ;  that  a  part  of  said  scrip  was  after- 
wards located  upon  the  land  in  question  by  said  Foster,  and  the 
deed  put  in  evidence  by  defendant  afterwards  executed  under  that 
power  of  attornej^  that  the  consideration  in  the  deed  was  paid  to 
Foster ;  all  the  negotiations  had  with  him.  and  that  Lawrence, 
said  Amelia's  attorney  in  fact,  had  nothing  to  do  with  the  trans- 
action except  to  sign  the  deed  as  directed  by  Foster ;  that  the 
whole  transaction  was  designed  to  evade  and  defeat  said  act  of 
Congress. 

The  defendant  objected  to  the  reception  of  such  evidence,  on 
the  ground  that  it  was  incompetent,  irrelevent  and  im.material ; 
the  court  sustained  the  objection  and  plaintiffs  excepted. 

The  jury  found  a  verdict  for  the  defendant,  the  plaintifls  made 
a  motion  for  a  new  trial  which  was  denied,  and  they  appealed  from 
the  order  denying  the  same  to  the  court. 

John  N.  Mnrdock  and  Wilder  4'-  Williston  for  appellants. 

Cam'phell  ^-  Birdsay  and  Mitchell  ($-  Y(de  for  respondent. 

By  the  Court — Gilfillan,  Ch.  J. : 

The  act  of  Congress  of  1854,  under  which  Sioux  half-breed 
scrip  was  issued,  provides  "  that  no  transfer  or  conveyance  of 
any  of  said  certificates  or  scrip  shall  be  valid.'"  It  was  the  inten- 
tion of  Congress  that  the  right  to  acquire  public  lands  by  means 
of  this  scrip  should  be  a  personal  right  in  the  one  to  whom  the 
scrip  issued,  and  not  property  in  the  sense  o|'  l)eing  assignable  ; 
but  no  restraint  is  imposed  upon  the  right  of  property  in  the  land 
after  it  is  acquired  b^^  location  of  the  scrip.  In  the  scrip,  itself, 
the  half-breed  had  nothing  which  he  could  transfer  to  another ; 
but  his  title  to  .the  land,  when  perfected  under  it,  was  as  absolute 
as  though  acquired  in  any  other  way.  It  follows  that  any  attempt 
to  transfer  the  scrip  directly  or  indirectly,  would  be  of  no  effect 
as  a  transfer.  The  title  to  the  scrip  would  remain  in  him,  and 
the  title  to  the  land  acquired  by  it  would  be  vested  in  him,  just  as 
though  no  such  attempt  had  been  made. 


'Y  Gilbert  r.  Thompson.  585 

7 

Such  rtttempt  to  transfer  would  not  involve  any  moral  tnri»itufle, 
nor  the  breach  of  any  legal  duty,  as  is  the  case  with  an  attempt 
to  transfer  a  pre-emptive  right.  It  would  be  simi)ly  ineifectual, 
because  the  scrip  is  not  transferable.  A  power  of  attorney,  so 
far  as  intended  to  operate  as  a  transfer,  would  be  of  no  avail :  the 
right  of  the  half-breed  in  the  scrip  and  land  would  remain  the 
same  :  it  could  not  be  made  irrevocable,  nor  create  any  interest  in 
the  attorney.  Should  the  attorney  sell  under  it.  he  would  be 
accountable  to  his  principill.  precisely  as  in  the  case  of  any  power 
to  sell ;  but  a  simple  power  to  sell,  executed  by  a  half-breed,  is 
good  till  revoked,  and  would  extend  to  land  subsequently  acquired 
by  means  of  scrip,  if  such  land  came  within  its  terms.  We  think 
such  a  power  could  not  be  varied  by  parol  proof  that  the  parties 
had  an  intention  not  exj^ressed  in  it,  even  to  defeat  the  power,  ex- 
cept on  the  same  groundsas  would  admit  such  proof  in  other  cases. 

The  intent  to  transfer  the  scrip  not  l^eing  illegal,  but  only  inef- 
fectual, could  not  affect  the  power  where  not  expressed  in  the 
same  instrument,  or  in  one  ecpial  in  degree,  as  evidence. 

Whether  the  power  would  be  upheld  in  an  instrument,  upon  its 
face  a  transfer,  the  former  being  only  incidental,  we  do  do  not 
decide. 

When  the  deed  executed  by  the  attorney  was  offered  in  evi- 
dence, the  plaintiffs  objected  to  it  on  the  grounds  "  that  it  was 
not  executed  in  form  to  admit  to  record  ;  that,  in  form,  the  deed 
was  an  absolute  nullity,  as  it  was  not  in  the  form  required  for  con- 
veyances of  real  estate."'  From  this,  neither  the  defendant  nor 
the  court  below  could  know  what  precise  objection  was  intended. 
Under  it,  the  specific  objection  is  made  here  that  the  acknowledg- 
ment is  defective,  and  that  the  land  is  described  *b_y  employing 
initial  letters  to  designate  the  subdivisions.  The  objection  made 
below,  does  not  point  out  either  of  these  objections.  A  party 
objecting  to  the  introduction  of  evidence,  must  state  his  point  so 
definitely  that  the  court  ma}'  intelligently  rule  upon  it.  and  the 
opposite  party  may.  if  the  case  will  admit  of  it.  remove  the 
objection  by  other  evidence.  As  there  was  no  (piestiou  of  record 
notice,  both  these  ol>jections.  if  they  had  been  well  founded, 
might  have  been  removed  :  that  to  the  acknowledgment,  by  com- 
mon law  proof  of  the  execution,  and  that  to  the  description,  by 
proof  of  the  sense  in  which  the  parties  read  the  initials.  (1  Green- 
leaf  Ev.,  (12  ed.)  sec.  282  et  seq.) 

The  order  appealed  from  is  Apirmcd. 


586  McGarrahan  r.  Mining  Company. 

McGai;i;aiia\    r.   ^NIimnc   Company. 
October   'I'erni,    1877.— n   Otto,  .'510. 

1.  The  statutory  provisions  prescribing  the  manner  in  which  a  patent 

of  the  United  States  for  land  shall  be  executed  are  mandatory.  No 
equivalent  for  any  of  the  required  formalities  is  allowed,  but  each  of 
the  integral  acts  to  be  performed  is  essential  to  the  perfection  and 
validity  of  such  an  instrument.  If,  therefore,  it  is  not  actually 
countersigned  by  the  recorder  of  the  General  Land  Office  in  person, 
or  in  his  absence,  by  the  principal  clerk  of  private  land  claims  as 
acting  recorder,  it  is  not  executed  according  to  law.  and  does  not 
pass  the  title  of  tlie  United  States. 

2.  The    record   in  the  volume  kept  for  that  purpose,  at  the  General 

Land  Office  at  Washington,  of  a  patent  which  has  been  executed  in 
the  manner  which  the  law  directs,  is  evidence  of  the  same  dignity', 
and  is  subject  to  the  same  defences  as  the  patent  itself .  If  the  instru- 
ment, as  the  same  appears  of  record,  was  not  so  executed,  and  was 
therefore  insufficient  on  its  face  to  transfer  the  title  of  the  United 
States,  the  record  raises  no  presumption  that  a  patent  duly  execu- 
ted, was  delivered  to  and  accepted  by  the  grantee. 

3.  The  act  of  March  3,  1843  (5  Stat.,  627),  in  relation  to  exemplifications 

of  records,  does  not  dispense  with  the  provisions  of  law  touching  the 
signing  and  countersigning.  The  record  to  prove  a  valid  patent, 
must  still  show  that  they  were  complied  with.  The  names  need  not 
be  fully  inserted  in  the  record,  but  it  must  appear  in  some  form  that 
they  were  actually  signed  to  the  patent  when  it  was  issued. 

4.  The  failure  to  record  a  patent  does  not  defeat  the  grant. 

Eiir.ou  to  the  Supreme  Court  of  the  State  of  California. 

This  was  ejectment  by  William  ^McGarrahan  in  the  District 
Court  of  the  twentieth  judicial  district  of  California  in  and  for 
Santa  Clara  county  against  the  New  Idria  Mining  Company,  to 
recover  possession  of  certain  lands  in  that  State  known  as  the 
Rancho  Panoche  Grande.  He  claimed  them  under  a  patent  there- 
for which  he  alleged  had  been  issued  by  the  United  States  to 
Vicente  P.  Gomez,  his  grantor,  under  the  act  of  Congress  to  ascer- 
tain and  settle  the  private  land  claims  in  the  State  of  California, 
approved  ?tLarch  3.  18ol.  (1)  Stat..  831.)  The  patent  was  not 
produced  upon  the  trial ;  but  the  plaintiff  put  in  evidence  a  certi- 
fied copy  of  ah  instrument  as  the  same  was  recorded  in  a  volume 
kept  at  the  General  Land  Office  at  Washington,  for  the  recording 
of  patents  of  the  United  States  for  confirmed  Mexican  l.ind  grants 
in  California,  being  volume  4  of  such  records,  upon  pages  312  to 
321  inclusive.     The  concluding  portion  of  that  copy  is  as  follows  : 


McGarrahan  v.  Mining  Company.  587 

''  In  testimony  whereof,  I,  Abraliam  Lincoln,  President  of  the  United 
States,  have  caused  these  letters  to  be  made  patent,  and  the  seal  of  the 
General  Land  Office  to  be  hereunto  affixed. 

"  Given  under  ray  hand  at  the  city  of  Washington,  tiiis  fourteenth  day 
of  March,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  sixty- 
three,  and  of  the  independence  of  the  United  States  the  eighty-seventh, 
[r.  s.]  "  By  the  President :     ABRAHAM  LINCOLN. 

"  By  W.  O.  Stoddard,  Secretari/, 
"  Acting  Recorder  of  the  General  Land  Office.'''' 

As  the  only  question  decided  by  this  court  is  whether  the  ex- 
emplification admitted  on  the  trial  of  the  cause  shows  upon  its 
face  the  execution  of  a  patent  sufficient  in  law  to  pass  the  title  of 
the  United  States,  no  reference  is  made  to  the  other  points  which 
arose  in  the  court  below  and  were  elaborately  discussed  by  coun- 
sel here. 

The  district  court  rendered  judgment  for  the  defendant,  which 
was  affirmed  by  the  supreme  court.  McGarrahan  then  sued  out 
this  writ  of  error. 

Mr.  Montgomery  Blair,  Mr.  Matt.  H.  Carpenter,  and  ]\Ir.  Chas. 
P.  Shav:  for  the  plaintitf  in  error. 

The  recording  of  a  document  which  the  law  autliorizes  to  be 
recorded  is  evidence  of  the  pre-existence  of  all  that  is  necessary 
to  authoi'ize  the  recording.  [Farrar  v.  Fessenden,  39  N.  H.,  268  ; 
McCauley  et  al.  v.  State,  21  Md.,  5.56  ;  Warner  v.  Hardy,  6  Id., 
525;  Barton  x.  Marra'in.  27  Mo.,  235;  Patterson  v.  Winn,  5  Pet., 
239.) 

The  requirement  that  patents  for  lands  shall  be  countersigned 
by  the  recorder  of  the  General  Land  Office  is  merely  dii'ectory. 
and  the  countersigning  of  such  an  instrument  is  not  essential  to 
its  validity.  (Sedgwick  Stat,  and  Const.  Law,  368,  374  ;  Rex  v. 
Inhabitants  of  Birmingham,  9  Barn.  &  Cress.,  925  ;  Colex.  Green, 
6  Man.  &  G.,  872  ;  Gale  v.  Mead,  2  Den.,  (N.  Y.)  16p  ;  Marchant 
V.  Longworthy,  3  Id.,  526  :  People  v.  Livingston,  8  Barb.,  (N.  Y.) 
253  ;  Juliand  v.  Rathbone,  39  Id.,  101 ;  Ayres  v.  Stewart,  1  Overt., 
(Tenn.)  221  ;  Hickman  v.  Boffman,  Hard.,  (Ky.)  348  ;  Spencer  v^ 
Lapsley,  20  How.,  264;  United  States  y.  Sidler,  21  Id.,  170;  Wil- 
liams V.  Sheldon,  10  Wend.,  (N.  Y.)  654 ;  Hedden  v.  Overton,  4 
Bibb,  (Ky.)  406  ;  Exum  v.  Brister,  35  Miss.,  391  ;  Blount  v.  Ben- 
bury,  2  Hayw.,  (N.  C.)  542  ;  Philips  v.  Ericin,  1  Overt.,  (Tenn.) 
235  ;  Reid's  Lessee  v.  Dodson,  Id.,  313  :  Lessee  of  Stephens  v. 
Bear.  3  Binn.,  (Pa.)  31  ;  Lessees  of  Welter  v.  Beecher.  3  Wash.^ 
375.) 


588  McGarrahan  v.  Mining  Company. 

If  the  name  of  the  recorder  be  omitted  in  the  record  the  first 
section  of  the  act  of  March  3.  1843,  (5  Stat..  627),  cures  the  defect 
by  making  the  mere  record  of  tlie  patent  conclusive  of  its  due 
execution,  and  copies  of  such  record  of  the  same  validity  in  "evi- 
dence as  if  the  names  of  the  officers  signing  and  countersigning 
the  same  had  been  fully  inserted  in  said  record." 

Mr.  Jermiuh  S.  Black  contra. 

Patents  for  private  land  claims  are  not  valid  unless  counter- 
signed and  sealed  by  the  recorder  of  the  General  Land  Office. 
(2  Stat.,  716,  sect.  8;  5  Id.,  111.  sect.  6:  Id.,  416,  sects.  1.  2: 
United  States  v.  The  Commissioner,  5  Wall..  563  :  TJie  Secretary  v. 
McGarrahan,  9  Id.,  248  ;  3  Op.  Att'y  Gen.,  140.  167,  630. 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

The  Federal  question  in  this  case  is  whether  the  record  in  the 
volume  kept  at  the  General  Land  Office  at  Washington  for  the 
recording  of  patents  of  the  United  States  issued  upon  California 
confirmed  Mexican  grants,  relied  upon  by  McGarrahan  as  evi- 
dence of  his  title,  proves  a  conveyance  by  the  United  States  of 
the  land  in  controversy  to  Vicente  P.  Gomez,  his  grantor.  In 
his  behalf  it  is  contended  that  the  record  is  itself  the  grant ;  or. 
if  not,  that  it  proves  the  issue  to  Gomez  of  a  patent  which  does 
grant  the  legal  title  to  the  property  described. 

That  the  record  is  not  itself  the  grant  of  title  is  evident.  The 
thirteenth  section  of  the  act  "  to  ascertain  and  settle  the  private 
land  claims  in  the  State  of  California"  (0  Stat..  631)  provides 
that  '•  for  all  claims  finally  confirmed.  *  *  *  A  patent  shall 
issue  to  the  claimant  upon  his  presenting  to  the  General  Land 
Office  an  authentic  copy  of  such  confirmation  and  a  plat  of  the 
survey."  &c.  By  sect.  8  of  the  -act  for  the  establisliment  of  a 
general  land' office  in  the  Department  of  the  Treasury."  (2  Id., 
717),  it  is  enacted  that  "all  patents  issuing  from  the  said  office 
shall  be  issued  in  the  name  of  the  United  States  and  under  the 
seal  of  said  office,  and  be  signed  bj'  the  President  of  the  United 
States,  and  countersigned  by  the  commissioner  of  said  office,  and 
shall  be  recorded  in  said  office  in  books  to  lie  kept  for  the  pur- 
pose." Thus  the  patent  executed  in  the  prescribed  form  which 
issues  from  the  General  Land  Office  is  made  the  instrument  of 
passing  title  out  of  the  United  States. 

The  record  of  this  patent  is  evidence  of  the  grant,  but  not  the 
grant  itself.      It  is  evidence  of   equal  dignity  with  the  patent, 


McGarrahan  v.  Mining  Company.  589 

because,  like  the  patent,  it  shows  that  a  patent  containinir  the 
grant  has  been  issued. 

The  record  called  for  by  the  act  of  Congress  is  made  by  copy- 
ing the  patent  to  be  issned  into  the  book  kept  for  that  i)nrpose. 
The  effect  of  the  record,  therefore,  is  to  show  that  an  instrument, 
such  as  is  there  copied,  has  actually  been  prepared  for  issue  from 
the  General  Land  Office.  If  the  instrument  as  recorded  is  suf- 
ficient on  its  face  to  pass  the  title,  it  is  to  be  presumed  that  the 
grant  has  actually  been  made  ;  but  if  it  is  not  suflflcient  no  such 
presumption  arises.  In  short,  the  record,  for  the  purposes  of  evi- 
dence, stands  in  the  same  position,  and  has  the  same  eflTect  as  the 
instrument'  of  which  it  purports  to  be  a  copy. 

The  same  defences  can  be  made  against  the  record  as  could  be 
made  against  the  instrument  recorded.  The  public  records  of 
the  executive  departments  of  the  government  are  not  like  those 
kept  pursuant  to  ordinary  registration  laws,  intended  for  notice, 
but  for  preservation  of  the  evidence  of  the  transactions  of  the 
department. 

This  brings  us  to  inquire  whether  this  record  shows  upon  its 
face  the  execution  of  a  patent  sufficient  in  law  to  transfer  the 
title  of  the  premises  in  controversy  from  the  United  States.  And 
here  it  may  not  l)e  improper  to  note  that,  although  the  case 
shows  that  in  July,  1870,  before  this  suit  was  commenced,  the 
Commissioner  of  the  General  Land  Office  and  the  recorder  caused 
to  be  entered  upon  the  face  of  the  record,  over  their  oflBcial  signa- 
tures, a  statement  to  the  effect  that  the  instrument  in  question 
was  never  in  fact  executed  or  delivered.  McGarrahan  rests  his 
whole  case  upon  the  record  and  the  evidence  it  furnishes.  This 
he  has  the  undoubted  right  to  do  ;  but,  if  he  does,  he  must  stand 
or  fall  by  what  it  proves.  It  is  his  own  fault,  if,  having  a  valid 
patent  in  his  possession,  he  fails  to  produce  it. 

By  the  first  section  of  the  "  Act  to  reorganize  the  General 
Land  Office"  (5  Stat.,  107),  it  was  provided  tliat  the  executive 
duties  relating  "  to  private  claims  of  land,  and  the  issuing  of 
patents  for  all  grants  of  land  under  the  authority  of  the  govern- 
ment of  the  United  States,  shall  be  subject  to  the  supervision  and 
control  of  the  Commissioner  of  the  General  Land  Office,  under 
the  direction  of  the  President  of  the  United  States  ;  "  and  by  the 
fourth  section,  "  that  there  shall  be  appointed  by  the  President, 
by  and  with  the  consent  of  tlie  Senate,  a  recorder  of  the  General 
Land  Office,  whose  duty  it  shall  be,  in  pursuance  of  instructions 


590  McGarrahan  v.  Mining  Company. 

from  the  commissioner,  to  certify  and  affix  the  seal  of  the  General 
Land  Office  to  all  patents  for  public  lands,  and  he  shall  attend  to 
the  correct  engrossing,  and  recording,  and  transmission  of  such 
patents.  He  shall  prepare  alphabetical  indexes  of  the  names  of 
patentees  and  of  persons  entitled  to  patents.  *  *  *  "  By  the 
sixth  section,  it  was  further  provided  that  "it  shall  be  lawful  for 
the  President  of  the  United  States,  by  and  witl)  the  advice  and 
consent  of  the  Senate,  to  appoint  a  secretary  *  *  *  whose 
duty  it  shall  be.  under  the  direction  of  the  President,  to  sign,  in 
his  name,  and  for  him.  all  patents  for  lands  sold  or  granted  under 
the  authority' of  the  United  States."  By  the  second  section  of  the 
act  of  March  3.  1H41  {id..  416).  the  dutv  of  countersigning  patents 
was  transferred  from  the  Commissioner  of  the  General  Land 
Office  to  the  recorder. 

Thus  it  appears  that  a  patent  for  lands  must  be  signed  in  the 
name  of  the  President,  either  by  himself  or  by  his  duly  appointed 
secretary,  sealed  with  the  seal  of  the  General  Land  Office,  and 
countersigned  by  the  recorder.  Until  all  these  things  have  been 
done,  the  United  States  has  not  executed  a  patent  for  a  grant  of 
lands. 

Each  and  ever}^  one  of  the  integral  parts  of  the  execution  is 
essential  to  the  perfection  of  the  patent.  They  are  of  equal 
importance  under  the  law.  and  one  cannot  be  dispensed  with  more 
than  another.  Neither  is  directory,  but  all  are  mandatory.  The 
question  is  not  what,  in  the  absence  of  statutory  regulations, 
would  constitute  a  valid  grant,  but  what  the  statute  requires. 
Xot  what  other  statutes  may  prescribe,  but  what  this  does. 

Neither  the  signing,  nor  the  sealing,  nor  the  countersigning, 
can  be  omitted,  any  more  than  the  signing,  or  the  sealing,  or  the 
acknowledgment  by  a  grantor,  or  the  attestation  by  witnesses, 
when,  by  statute,  such  forms  are  prescribed  for  the  due  execution 
of  deeds  by  private  parties  for  the  conveyance  of  lands.  It  has 
never  been  doubted  that  in  such  cases  the  omission  of  any  of  the 
statutory  requirements  invalidates  the  deed.  The  legal  title  to 
lands  cannot  be  conveyed  except  in  the  form  provided  by  law. 

But  if  either  of  the  requisites  to  the  due  execution  of  a  patent 
may  be  considered  as  directory,  the  countersigning  by  the  recorder 
should  not  be  permitted  to  occupy  that  position. 

The  President  may  sign  by  his  secretary,  but  the  recorder  must 
sign  himself.  He  countersigns,  that  is  to  say.  signs  opposite 
to  and    after   the   President,    by  wav  of  authentication.     Being 


McGarkahan  v.  Mining  CoxMpany  591 

specially  cliarged  with  the  duty  of  attendiiiij;  to  the  issue  of  pat- 
ents, it  is  peculiarly  appropriate  that  liis  attestation  should  be  the 
last  act  to  be  jjerformed  in  the  perfection  of  the  instrument,  and 
that  he  should  do  it  personally. 

The  record  in  this  case  shows  an  instrument  in  the  form  of  a 
patent,  signed  in  the  name  of  the  President,  and  sealed. 

The  place  for  the  signature  of  the  acting  recorder  is  left  blank. 
The  name  of  the  President  is  signed  by  his  secretary.  The  claim 
which  is  made,  that  Stoddard,  the  secretary,  also  countersigned 
as  acting  recorder,  is  not  sustained  b}-  the  evidence.  His  signa- 
ture appears  only  as  secretary,  and  there  is  nothing  whatever  to 
indicate  that  he  attemi)ted  to  act  as  recorder. 

Besides,  the  law  provides  (5  Stat.,  111.  sect.  8).  -'that  whenever 
the  office  of  recorder  shall  become  vacant,  or  in  case  of  the  sick- 
ness or  absence  of  the  recorder,  the  duties  of  his  office  shall  be' 
performed  ad  interim  by  the  principal  clerk  on  private  land 
land  claims.'"  It  certainly  is  not  to  be  presumed  that  the  same 
person  will  hold  at  the  same  time  the  offices  of  secretary  to  the 
President  for  siguij^ig  patents,  and  of  principal  clerk  on  private 
land  claims.  And  if  it  wei'e.  his  signature  as  secretary  will  not 
be  treated  as  his  signature  as  recorder  (td  inter iw  or  acting 
recorder.     He  must  sign  both  as  secretary  and  as  recorder. 

The  ease  is,  therefore,  one  in  which  the  record  shows  upon  its 
face  an  instrument  prepared  for  a  patent  but  not  countersigned  by 
the  recorder.  If  a  patent  thus  defectively  executed  had  itself  been 
introduced  in  evidence,  it  would  not  have  shown  a  grant  actually 
l)erfected.  But  it  is  said  that  the  record  of  the  paper  is  evidence  of 
the  fact  that  the  recorder  recognized  its  completeness,  and  is 
equivalent  to  its  counter-signature.  The  law  is  not  satisfied  with 
the  simple  recognition  of  the  validity  of  a  patent  by  an  officer  of 
the  government.  To  be  valid  a  patent  must  be  actually  executed. 
Before  it  can  operate  as  a  grant,  the  last  formalities  of  the  law 
prescribed  for  its  execution  must  be  complied  with.  No  provision 
is  made  for  an  equivalent  to  these  formalities.  Even  an  actual 
delivery  of  the  patent  by  the  recorder  in  person  would  not  supply 
the  place  of  his  counter-signature,  any  more  than  the  delivery  of 
a  paper  by  a  pi'ivate  })erson  without  being  signed  would  make  it 
his  deed. 

But  the  record  of  a  patent  would  not  lie  necessarih'  as  much  a 
recognition  of  its  validity  as  a  personal  delivery  by  the  recorder, 
because  he  only  attends  to  the  recording,  and  is  not  required  to 


592  McGarrahan  v.  Mininc;  Company. 

do  it  111  person.  The  only  way  in  which  he  can  lawfully  and 
effectually  recognize  the  validity  of  a  patent  is  by  personally 
countersigning  it. 

Again  it  is  said  that  the  act  of  March  3,  1843  (.5  Stat.,  fi27). 
remedies  the  defect,  because  it  provides  "that  literal  exemplifi- 
cations of  any  such  records  which  may  have  been  or  may  be 
granted  in  virtue  of  the  provisions  of  the  seventh  section  of  the 
act  *  *  *  entitled  '  An  act  to  reorganize  the  General  Land 
Office,'  shall  be  deemed  and  held  to  be  of  the  same  validity  in  all 
proceeding,  whether  at  law  or  in  equity,  wherein  such  exemplifica- 
tions are  adduced  in  evidence,  as  if  the  names  of  the  oflBcers 
signing  and  countersigning  the  same  had  been  fully  inserted  in 
such  record."  This  act  does  not,  however,  disjiense  with  the 
signing  and  countersigning. 

The  record,  to  prove  a  valid  patent,  must  still  show  that  these 
provisions  of  the  law  were  complied  with.  The  names  need 
not  be  fully  inserted  in  the  record,  but  it  must  appear  in  some 
form  that  the  names  were  actually  signed  to  the  patent  when  it 
issued.  If  they  are  partially  inserted  in  the  record,  it  will  be 
presumed  that  they  fully  appeared  in  the  patent,  but  no  such  pre- 
sumption will  be  raised  if  no  signature  is  shown  by  the  record. 
Here  no  signature  does  appear,  and  consequently  none  will  be 
presumed. 

The  failure  to  record  the  patent  does  not  defeat  the  grant.  It 
only  takes  from  the  party  one  of  the  means  of  making  his  proof. 
If  he  can  produce  the  patent  itself,  and  that  is  executed  with  all 
the  formalities  required  by  the  law,  he  can  still  maintain  his  rights 
under  it.  He  is  not.  therefore,  necessarily  deprived  of  his  title 
because  of  a  defective  record.  He  is  in  no  worse  condition  with  the 
signatures  omitted  than  he  would  have  been  if  the  description  of 
his  land  had  been  erroneously  copied,  or  other  mistakes  had  been 
made  which  rendered  the  record  useless  for  the  purposes  of 
evidence. 

A  perfect  record  of  a  perfect  patent  proves  the  grant ;  but 
a  perfect  record  of  an  imperfect  patent,  or  an  imperfect  record 
of  a  perfect  patent,  has  no  such  effect.  In  such  a  case,  if  a 
perfect  patent  has  in  fact  issued,  it  must  be  proved  in  some  other 
way  than  by  the  record.  It  is  undoubtedly  true  that,  when  a 
right  to  a  patent  is  complete,  and  the  last  formalities  of  the  law 
in  respect  to  its  execution  and  issue  have  been  complied  with  by 
the  officers  of  the  government  charged  with  that  duty,  the  record 


McGarrahan  r.  Mining  Company.  693 

will  be  treated  as  presumptive  evidence  of  its  delivery  to  and 
acceptance  by  the  orantee.  But  until  the  patent  is  complete,  it 
cannot  properly  be  recorded,  and  consequently  an  imcomplete 
record  raises  no  such  presumption. 

Again,  it  is  said  that  the  record  of  an  instrument  which 
the  law  requires  to  be  recorded  is  prima  facie  evidence  of  the 
validity  of  the  instrument.  That  is  undoubtedly  true,  if  the 
instrument  recorded  is  apparently  valid.  The  presumption 
arising  from  the  record  is.  that  whatever  appears  to  have  been 
done,  actually  was  done.  If  the  record  shows  a  |)erfect  instru- 
ment, the  presumption  is  in  favor  of  its  validity  :  but  if  it  shows 
an  imperfect  instrument,  a  corresponding  presumption  follows. 
Here  the  instrument  recorded  appears  to  have  been  incomplete, 
and  consequently  it  must  be  presumed  to  be  invalid.  This  pre- 
sumption will  continue  until  overcome  by  proof  that  the  instru- 
ment as  executed  and  delivered  was  valid. 

We  are  of  the  opinion  that,  because  this  record  does  not  show  a 
patent  countersigned  by  the  recorder,  it  is  not  sufficient  to  prove 
title  in  the  party  under  whom  ^IcGarrahan  claims.  This  makes 
it  unnecessary  to  consider  any  of  the  other  questions  which  have 
been  argued  ;  and  the  judgment  is  Affirmed. 

Mr.  Justice  Field  and  ]\Ii:.  Jistue  Haulax  took  no  ))art  in 
the  decision  of  this  cause. 


Note. — 1.  An  exemplification  of  a  public  grant,  under  the  great  seal, 
Is  admissible  in  evidence,  as  record  proof  of  as  high  a  nature  as  the  origi- 
nal patent.     Patter-son  v.  Winn^  .">  Peters,  233. 

The  government,  as  appeared  by  the  exemplification  of  the  record  of 
a  patent,  had  granted  .lanuary  Iflth.  818,  to  A  tlie  northeast  quarter  of 
a  certain  tract  of  land,  in  pursuance  confessedly  of  a  warrant  and  loca- 
tion upon  tliat  quarter  ;  the  exemplification  of  the  record  of  the  patent, 
however,  showing  that  eight  years  after  the  date  of  the  patent,  the  fol- 
lowing memorandum  had  been  made  on  this  record,  but  by  whom  did 
not  appear : 

"  Indorsed. 
"  I'his  patent  was  issuel   for  the  S.  E.  quarter  instead  of  the  N.  E. 
quarter,  as  recorded  ;  sent  certificate  of  that  fact  to  E.  B.  Clemson,  at 
Lebanon,  Illinois.     See  his  letter  of  19th  May,  lS-2i;." 

Held,  that  the  memorandum  on  the  record  being  no  part  of  the  record, 
and  but  the  memorandum  of  a  third  person,  could  not  be  received  in 
evidence  to  contradict  the  record.     Branson  v.  Wirlh,  17  Wallace.  32. 

38 


594  13kll  c.  Heaknk. 

JonN  Bkli,,    plaiiitirt    in  error,   v.  CoLiiMms    C.    Heakne  and 

OTHERS. 

December  Term,  Lso(i. — in  Howard,  2o'2  ;  1  Miller,  670. 
Error  io  State  Court. —  Validity  of  l\\tent  for  Land. 

1.  Where  the  question  decided  hy  the  State  court  is,  that  a  patent  for 

land  from  the  United  States  is  invalid,  the  party  claiming  under  that 
patent  can  bring  a  writ  of  error  to  this  court. 

2.  Where  the  register  and  receiver  of  the  land  office  received  plaintiff's 

money,  gave  him  the  usual  patent  certificate,  but  by  mistake  reported 
it  to  the  General  Land  Office  as  James  Bell  instead  of  John  Bell,  the 
patent  issued  to  James  Bell  maj^  be  recalled  and  canceled,  though  it 
may  have  been  sent  to  the  register  of  the  land  office  for  him,  but 
never  delivered. 

3.  Such  a  patent  conveys  no  title,  and  cannot  affect  the  title  under  the 

patent  afterwards  rightfully  issued  to  John  Bell. 

This  was  a  writ  of  error  to  the  Supreme  Court  of  the  State  of 
Louisiana. 

The  case  is  \'n\\y  stated  in  the  opinion. 

Mr.  Baxter  and  Mr,  Johnson  for  plaintifl'  in  error. 

Mr.  Lmrrence  and  Mr.  Taylor  for  defendants. 

.  Mr.  Justice  Campbell  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  Supreme  Court  of  Louisiana,  under 
the  25th  section  of  the  Judiciary  Act  of  September,  1789. 

The  plaintift'  commenced  a  petitory  action  in  the  district  court 
of  Caddo  parish,  Louisiana,  for  a  parcel  of  land  in  the  possession 
of  the  defendants.  He  claims  the  land  by  a  purchase  from  the 
United  States,  and  exhibits  their  patent  for  it,  bearing  date  in 
June,  1850,  with  his  petition.  The  defen,dant  (Hearne)  appeared 
to  the  action,  and  answered  that  the  United  States  had  sold  the 
land  to  James  Bell,  and  as  the  property  of  James  Bell  it  had  been 
legally  sold  by  the  sheriff  of  Caddo,  under  a  valid  judgment  and 
execution  against  him,  and  that  a  person  under  whom  he  (Hearne) 
derives  his  title  was  the  purchaser  at  the  sheriff's  sale.  A  number 
of  parties  were  cited  in  warranty,  and  answered  to  the  same  effect. 
A  judgment  was  given  for  the  defendants  in  the  district  and 
supreme  courts,  and  upon  the  judgment  in  the  last  the  plaintiff 
prosecutes  this  writ  of  error. 

The  title  of  the  plaintiff  consists  of  the  duplicate  i-eceipts  of 
the  receiver  of  the  land  office  at  Natchitoches,  Louisiana  (No. 


Bell  v.  Hearne.  595 

1,270),  dated  in  July,  188!),  by  which  he  acknowledges  the  receipt 
from  the  plaintiff  of  full  payment  for  the  lands  described  in  the 
receipt  and  petition,  a  patent  certificate  of  the  same  date  and 
number  from  the  register  of  that  office  certifying  the  purchase  of 
the  plaintiff  and  his  right  to  a  patent,  and  a  patent  issued  in  due 
form  for  the  said  lauds,  in  pursuance  of  the  act  of  Congress,  and 
the  patent  certificate. 

The  case  of  the  defendants  originates  in  these  facts  :  The  register 
of  the  land  office  at  Natchitoches,  in  making  up  his  duplicate  cer- 
tificate of  purchase  to  be  returned  to  the  General  Land  Office, 
inserted  the  name  ot"  James  Bell  for  that  of  John  Bell.  That 
certificate  was  sent  to  the  General  Land  Office  with  the  niontlily 
returns  of  the  register,  and  in  July,  1844,  a  patent  was  issued  in 
the  name  of  James  Bell,  and  sent  to  the  register  at  Natchitoches, 
who  retained  it  in  his  office  till  1849.  In  1849  John  Bell  sent  to 
the  office  of  the  register  his  duplicate  receipts,  and  the  patent  in 
the  name  of  James  Bell  was  delivered  to  him.  Upon  a  repre- 
sentation of  the  facts  to  the  Commissioner  of  the  General  Land 
Office  this  patent  was  canceled  and  a  new  one  issued  to  the  plaintiff. 

It  appears  from  the  proof  in  the  case  that  the  plaintiff  had  a 
brother  named  James  Bell,  who  was  his  agent  for  making  the 
entry,  and  that  the  land  was  sold  in  March,  1844,  as  his  property 
by  the  sheriff'  of  Caddo,  as  is  stated  in  the  answers  of  the  de- 
fendants. 

The  act  of  Congress  of  the  24th  April,  1820,  providing  for  the 
sales  of  the  public  lands  of  the  United  States,  enacts  :  "That  the 
purchaser  at  private  sale  shall  produce  to  the  register  of  the  land 
office  a  receipt  of  the  treasurer  of  the  United  States,  or  from  the 
receiver  of  public  moneys  of  the  district  for  the  amount  of  the 
purchase  money  on  any  tract,  before  he  shall  enter  the  same  at 
the  land  office."  At  various  times  since  the  passage  of  the  act 
the  modes  of  conducting  sales  at  the  different  land  offices  of  the 
United  States  have  been  prescribed  by  the  commissioner,  and 
the  evidence  to  be  afforded  to  the  purchaser  designated.  The  cir- 
cular issued  in  1831  contains  the  instructions  under  which  the 
local  officers  were  acting  at  the  date  of  this  entr3^  The  instruc- 
tions pertinent  to  this  case  are,  that  "when  an  individual  applies 
to  purchase  a  tract  of  land  he  is  required  to  file  an  application  in 
writing  therefor  ;  on  such  application  the  register  endorses  his 
certificate,  showing  that  the  land  is  vacant  and  subject  to  entr}-, 
which  certificate  the  applicant  carries  to  the  receiver,  and  is  evi- 


596  Bell  u.  Hearne. 

dence  on  which  the  receiver  permits  payment  to  be  raade,  and 
issues  his  receipt  therefor ;  the  duplicate  of  this  is  handed  to  the 
purchaser  as  evidence  of  payment,  and  which  should  be  surren- 
dered when  a  patent  forwarded  from  the  General  Land  Office  is 
delivered  to  him.  The  other  receipt  is  handed  to  the  register, 
who  must  immediately  indicate  the  sale  on  his  township  plat,  and 
enter  the  same  on  his  tract-book,  and  is  transmitted  to  the  General 
Land  Office  with  the  monthly  abstract  of  sales  and  certificates  of 
purchase." 

The  certificates  of  purchase  are  made  according  to  forms  fur- 
nished by  the  General  Land  Office  ;  one  is  issued  to  the  purchaser 
and  another  is  retained,  to  be  sent  to  the  commissioner.  They 
should  be  duplicates  ;  and  the  instructions  to  the  register  in  regard 
to  them  are.  "that  the  designation  of  the  tract  in  the  certificates 
of  purchases  is  always  to  be  in  writing,  not  in  figures.  The  cer- 
tificates are  to  be  filled  up  in  a  plain,  legible  hand,  and  great  care 
is  to  be  taken  in  spelling  the  names  of  the  purchasers.  The 
monthly  return  must  always  be  accompanied  by  the  receiver's 
receipts  and  register's  certificates  of  purchase."  From  this  state- 
ment of  the  act  of  Congress  and  the  regulations  of  the  land  office 
it  will  be  seen  that  the  embarrassment  in  which  this  title  is  in- 
volved proceeds  from  an  error  committed  by  the  register  at  Natchi- 
toches in  making  up  the  duplicates  of  his  certificate  of  purchase — 
tlie  duplicate  intended  for  the  General  Land  Office— and  from 
which  the  monthly  abstract  was  prepared. 

The  plaintiff  was  nowise  responsible  for  this.  He  had  paid  his 
money  into  the  receiver's  office,  and  obtained  the  receipt  prescribed 
by  the  act  of  Congress  of  1820,  before  cited. 

He  had  obtained  his  certificate  of  purchase,  evincing  his  title  to 
a  patent  certificate.  At  this  stage  of  the  proceeding,  the  register  of 
the  land  office,  in  completing  his  office  papers,  and  in  making  up 
his  returns  for  Washington  city,  committed  a  mistake,  which  was 
not  detected  by  the  officers  at  Natchitoches  in  compairing  their 
returns,  (as  they  are  ordered  to  do),  and  eluded  the  vigilance  of 
the  officer  at  AVashington.  It  was  discovered  at  Natchitoches, 
when  an  agent  for  the  plaintiff  apj^lied  for  the  patent,  and  surren- 
dered his  duplicate  receipt  and  certificate. 

It  was  then  discovered  that  the  christian  name  of  the  plaintiff 
had  been  inaccurately  set  out  in  the  returns  at  Washington  and 
the  patent.     The  Supreme  Court  of  Louisiana  say  : 

"  It  appears  from  the  evidence,  that  the  plaintiff  and  his  brother. 


Bei.l  v.  Hearne.  597 

James  Bell,  purchased  the  land  in  dis])nte  IVoin  the  United  States 
on  the  same  day — 3d  July.  1839 — and  that  the  patent  certificates 
were  issued  in  their  respective  names  bv  the  reu;ister  of  the  land 
office  at  Natchitoches,  Louisiana,  bearing  the  same  number." 

We  interpret  the  papers  from  the  land  office  differently'  from 
the  Supreme  Court.  There  is  no  evidence,  in  our  opinion,  of  more 
than  one  sale — that  evinced  by  the  receiver's  receipt — and  in  tiiat 
receipt,  John  Bell,  the  plaintiff,  is  named  as  the  purchaser.  We 
think  there  was  but  one  certificate  of  purchase  issued  to  a  pur- 
chaser— that  in  favor  of  John  Bell.  The  certificate  of  purchase 
which  contains  the  name  of  James  Bell  is  found  in  the  General 
Land  Office.  If  that  was  intended  for  a  James  Bell  there  should 
have  been  another  for  John  Bell.  But  there  is  only  a  single  cer- 
tificate there,  and  the  conclusion  is  irresistible,  that  the  name 
James  was  entered  by  mistake  for  John.  We  find  no  evidence  in 
the  record  to  show  that  James  Bell  held  any  evidence  of  a  pur- 
chase. 

Whatever  appearance  of  a  title  he  !iad,  is  owing  to  the  mistake 
in  the  duplicate  certificate  returned  to  the  General  Land  Office, 
and  the  patent  issued  in  his  name.  But  this  patent  was  never 
delivered  to  him.  The  question  then  arises,  had  the  Commissioned 
of  the  General  Land  Office  authority  to  receive  from  John  Bell 
the  patent  erroneously  issued  in  the  name  of  James  Bell,  and  to 
issue  one  in  the  proper  name  of  the  purchaser?  And  the  question, 
in  our  opinion,  is  exceedingly  clear.  The  Commissioner  of  the 
General  Land  Office  exercises  a  general  superintendence  over  the 
subordinate  officers  of  his  department,  and  is  clothed  with  liberal 
powers  of  control,  to  be  exercised  for  the  purposes  of  justice,  and 
to  prevent  the  consequences  of  inadvertance,  irregularity,  mistake, 
and  fraud,  in  the  important  and  extensive  operations  of  that 
officer  for  the  disposal  of  the  public  domain. 

Tlie  power  exercised  in  this  case  is  a  power  to  correct  a  clerical 
mistake,  the  existence  of  which  is  shown  plainly  by  the  record,  and 
is  a  necessary  power  in  the  administration  of  ever}^  department. 
Our  conclusion  is,  that  the  Supreme  Court  of  Louisiana  erred  in 
denying  the  validity  of  this  title,  and  in  conceding  any  eflect  or 
operation  to  the  certificate  of  purchase  or  patent  issued  in  the 
name  of  James  Bell,  as  vesting  a  title  in  a  person  bearing  tliat 
name. 

It  is  objected  that  this  court  has  no  jurisdiction  over  this  judg- 
ment of  the  Supreme  Court  of  Louisiana. 


598  LeKoy  0.  Clayton. 

The  plaintiff  claimed  the  land  described  in  his  petition,  under 
a  purchase  made  from  the  United  States,  and  produced  muni- 
ments of  title  issued  by  their  authority,  and  this  title  is  pro- 
nounced to  be  inoperative  by  the  District  and  Supreme  Courts  of 
Louisiana. 

Does  this  appear  by  the  record  before  us?  The  recoi'd  in  the 
Supreme  Court  of  Louisiana  purports  to  be  a  true  and  faithful 
transcript  of  the  documents  filed,  orders  made,  proceedings 
had,  and  evidence  adduced,  on  the  trial  in  the  district  court.  The 
supreme  court  possesses  the  right,  and  is  under  the  obligation  of 
examining  questions  of  fact  as  well  as  of  law,  and  to  state  the 
reasons  of  their  judgment.  The  statement  of  the  evidence  ad- 
duced is  taken  as  an  equivalent  for  a  statement  of  the  facts  by 
the  district  judge  in  the  practice  of  that  court.  It  clearly  appears 
that  the  ground  upon  which  the  judgment  in  the  supreme  court 
was  given,  was  the  invalidity  of  the  title  of  the  plaintiff,  because 
an  older  patent  had  been  issued  in  favor  of  James  Bell.  We 
think  this  court  has  jurisdiction.  {Armstrong  \. Treasurer,  c^-c, 
16  Pet.,  261;  Grand  Galf  E.  R.  and  B.  Co.^y.  M((rsh<dL  12 
How.,  IQh  ;  Almonester  v.  Kenton,  9  H.,  1.) 

Judgm e at  reversed. — Can se  renia n ded . 

NoTp:. — When  a  patent  has  issued  to  one  who  protests  against  the 
survev  on  which  it  is  made,  and  the  record  shows  that  he  never  accepted 
it,  the  Secretary  of  the  Interior  may  recall  it  from  the  local  land  oflflce. 
Maguire  v.  Tyler,  8  Wall.,  050. 

After  a  patent  has  been  issued  and  transmitted  to  the  local  land  office 
for  delivery,  the  commissioner  may  recall  it,  and  if  in  his  opinion,  it  was 
issued  to  the  wrong  person,  he  maj'^  cancel  it  and  issue  another  patent  to 
the  proper  person.     Phillips  v.  Sliermon.,  36  Ala.,  189. 


Theodoiie  Le  Koy   v.   Charles  Claytok  et  al. 
U.  S.  Circuit  Court,  District  of  California,  January,  1874.— 2  Sawyer,  4'.):L 

1.  Patent  Deliceri/. — A  personal  delivery  of  a  patent  to  the  patentee  is  not 

necessary  to  tlie  vestiug  of  the  title. 

2.  Patent  Recalled  with  consent  of  Patentee. — A  patent  in  due  form  signed 

by  the  President,  sealed  with  the  seal,  and  duly  recorded  in  the 
records  of  the  General  Land  Office,  issued  upon  a  Mexican  grant  of 
land  in  California,  confirmed  in  pursuance  of  the  act  of  Congress  of 
1851,  and  subsequent  acts,  was  sent  to  the  United  States  stu-vej-or- 
general  for  California  to  be  delivered  to  the  confirmee,     'i'he  pai'ty 


LeKoy  v.  Claytcin.  599 

entitled  refused  to  accept  the  patent,  on  the  g-ronnd  that  ft  Avas  errone- 
ously located,  and  of  defects  in  the  proceedings  prior  to  the  patent, 
and  petitioned  the  Commissioner  of  the  General  Land  OlKce  on  those 
grounds  to  recall  the  patent  and  order  a  resurvej',  which  was 
granted.     Held : 

1.  That  the  commissioner  of  the  land  oflice  had  power,  nnder  the  cir- 

cumstances, and  witl)  the  consent  of  tlie  party  in  interest,  to  recall 
the  patent  and  order  a  resurvey. 

2.  That  having  power  to  recall  the  patent  in  a  proper  case,  with  tlie  con- 

sent of  the  patentee,  he  had  power  to  determine  whetlier  the  appli- 
cation and  evidence  presented  a  proper  case  for  recall,  and  that  his 
action  is  not  void  by  reason  of  any  error,  if  any  error  there  be.  in 
determining  that  question. 

3.  Jvri>i<lirti(in  defined  to  be  the  power  to  hear  and  determine. 

4.  Patent  canceled  witltovl  consent  of  patentee — A  subsequent  snrvey  haAing 

been  made,  and  anotlier  patent  duly  signed,  sealed  and  recorded, 
being  in  all  respects  regular  and  in  due  form  on  its  face,  the  Com- 
missioner of  the  General  Land  Oftice  transmitted  it  to  the  United 
States  surveyor-general  for  California,  for  delivery  to  the  proper 
party  ;  but  before  its  arrival  in  California  recalled  it  by  telegraph, 
and  upon  its  return,  without  the  knowledge  or  assent  of  the  claim- 
ants, canceled  the  patent.  The  claimant,  as  soon  as  it  was  known 
acquiesced  in,  and  claimed  nnder  the  patent.     Held : 

1.  That  the  patent  took  effect  from  the  moment  when  it  was  signed  and 

duly  sealed. 

2.  If  not,  that  the  recording  of  the  patent,  and  its  transmission  to  the 

surveyor-general  for  California  to  be  delivered,  constituted  a  deliv- 
ery, and  the  title  passed. 

3.  That  the  title  having  vested  under  the  patent,  the  Secretary  of  the 

Interior  had  no  power  to  recall  or  cancel  the  patent,  without  the 
consent  of  the  patentee. 

4.  That   tlie   patent   being    valid    on   its  face,  cannot   be   collaterally 

impeached  by  matter  dehors  the  patent,  in  an  action  at  law  brought 
into  the  national  courts  to  recover  the  land  purporting  to  be  granted 
by  it. 
6.  That  the  only  mode  of  impeaching  the  patent,  is  by  a  direct  proceed- 
ing in  the  proper  form,  as  by  bill  or  information,  in  a  court  of  com- 
petent jurisdiction  against  the  patent,  to  annul  or  repeal  it. 

Before  Sawyek,  Circuit  Judge  : 

This  is  an  action  to  recover  land.  The  premises  are  claimed  to 
be  a  part  of  the  rancho  "  Gaudalupe,"  situated  in  the  county  of 
Santa  Barbara,  granted  by  the  Mexican  authorities  to  Diego 
Olivera  and  Teodora  Arrellanes.  The  grant  was  duly  presented 
for  confirmation,  and  confirmed  under  the  act  of  Congress  of 
1851,  applicable  to  the  subject.     It  was  surveyed  under  the  act  of 


fiOO  Le  Roy  ?;.  Clayton. 

I860,  and  on  June  30,  1866,  the  Commissioner  of  the  General' 
Land  Office,  in  dne  form,  issued  a  patent,  which  was  signed  by ' 
the  President,  sealed  with  the  seal  of  the  General  Land  Office, 
and  duly  recorded  in  the  records  of  that  office.  The  patent  con- 
tained all  the  usual  recitals  in  cases  of  grants  of  the  kind  con- 
firmed under  the  act  of  1851.  and  finally  surveyed  under  the  act 
of  ISGO,  and  was,  in  all  respects,  regular  and  in  due  form  upon 
the  face  of  the  patent.  (Jn  August  2,  1866,  the  Commissioner  of 
the  General  Land  Office  transmitted  said  patent  to  the  United 
States  Surveyor  General  for  California,  to  be  delivered  to  the  par- 
ties owning  the  grant.  Immediately  upon  receiving  notice  of  the 
issue  of  the  patent,  John  B.  Ward,  then  the  owner  of  the  grant, 
refused  to  accept  it,  on  the  ground  that  the  survey  was  erroneous, 
and  that  there  had  been  no  legal  notice  given  of  the  making  and 
approval  of  the  survey  and  plat,  as  required  by  the  said  act  of 
Congress  of  I860.  He  soon  after  presented  to  the  Commissioner  of 
the  General  Land  Office  a  petition,  with  affidavits  and  other  docu- 
raentar}^  evidence,  tending  to  show  that  no  legal  notice  of  the 
survey,  plats  and  approval  thereof,  had  been  given,  and  that  the 
survey  was  erroneous,  and  asked  that  the  patent  might  be  recalled 
and  a  new  survey  had. 

The  Commissioner  of  the  General  Land  Office,  acting  upon  said 
petition  and  evidence,  and  thinking  said  survey  and  patent 
erroneous,  on  October  22,  1866,  recalled  the  said  patent,  and 
directed  a  resurvey  to  be  made  by  the  surveyor  general. 

Thereupon  a  resurvey  was  made,  and  sucli  proceedings  were 
had  that,  on  March  1.  1.S70,  a  second  patent  was  duly  made  out, 
sealed  with  the  seal  of  the  General  Land  Office,  signed  by  the 
President,  recorded  in  the  records  of  the  General  Land  Office, 
and  afterward  transmitted  by  the  commissioner  to  the  surveyor 
general  for  California,  to  be  delivered  to  the  parties  interested. 

This  patent  was  in  the  usual  form  issued  in  such  cases,  con- 
taining all  the  recitals  of  prior  proceedings  required  by  the  acts 
of  Congress,  and  was  in  all  respects  regular  and  in  due  form  upon 
its  face. 

Afterward,  and  before  said  patent  reached  C'alifornia,  the  Com- 
missioner of  the  General  Land  Office  telegraphed  to  the  said  sur- 
veyor general  to  return  said  patent  to  the  General  Land  Office, 
and  it  was  so  returned,  but  without  the  knowledge  or  assent  of 
the  owners  of  said  grant.  Afterward,  the  Commissioner  of  the 
General  Land  Office,  also  without  the  assent  of  said  owners,  bv 


Le  Roy  v.  Clayton.  601 

direction   of  the   vSecretan-  of  the  Interior,  wrote  across  tlie   lace 
of  said  ])ntent  of  Marcli  1,  1H7(».  the  foUowinji;  words: 

"Cauceleil.  See  decision  dated  June  12.  1872.  of  General 
Land  OlHce,  affirmed  by  the  Honorable  Secretar}'  of  the  Interior, 
March  26,  1873. 

"  Wll.LIS   DllUMMOND, 

•'  Co'/nmia.'iumer  Getieral  Land  Office. 
"  April  10,  1873." 

Afterward,  in  June,  1873.  the  said  patent,  dated  June  30,  18(56, 
was  again  transmitted  by  the  Commissioner  of  the  General  Land 
Office  to  the  surveyor  general  for  California,  to  be  delivered  to  the 
owners  of  said  grant,  but  the  said  parties  have  declined  to  take 
said  patent,  and  they  claim  the  said  patent  of  date  March  1, 
1870,  to  be  the  only  correct  and  valid  patent. 

The  lands  in  question  are  not  included  in  the  patent  of  June 
30,  1866,  but  are  included  in  the  patent  of  March  1,  1870,  which 
last  named  patent  embraces  all  the  lands  covered  by  the  former, 
and  other  lands  in  addition.  The  plaintiff  deraigns  title  from  the 
original  grantees  of  the  said  Gaudaloupe  rancho  through  these 
proceedings,  claiming  under  said  patent  of  March  1,  1870.  The 
defendants  were,  at  the  commencement  of  this  action,  in  posses- 
sion, claiming  a  pre-emption  riglit  in  the  lands,  as  being  a  part  of 
the  i)ublic  domain  of  the  United  States. 

W.  H.  Patterson  and  J.  B.  Felton  for  plaintiff.         | 

Gray  4'-  Havens  for  defendants. 

Sawyek,  Circuit  Judge,  after  stating  the  facts  : 
The  patent  of  March  1,  1870,  took  effect  from  the  moment  it 
was  signed  by  the  President  and  passed  the  great  seal.  Certainlj^ 
from  the  time  it  was  recorded  in  the  proper  record  and  despatched 
to  the  survej^or  general  for  California,  to  be  delivered  to  the  claim- 
ants. A  delivery  in  the  case  of  a  government  patent  is  not 
necessary.  The  patentee  takes  bj'  matter  of  record  {Lott  v.  Proud- 
homme,  3  Rob.  La».  R.,  293),  which  is  directly  in  point.i  {Douner 
V.  Palmer,  31  Cal.,  513  ;  Marhvrg  v.  Madison,  1  Cranch,  137  ; 
Gree7i  v.  Leiter.  8  Cr.,  247  ;  Chipley  v.  Farris,  45  Cal.,  539  ;  Cun- 
ningham V.  Broivning,  1  Eland,  299.  304,  308,  321  ;  Phillips'^ 
Lessee  v.  Iriviti,  1  Tenn.,  Overton,  235  ;  Lapeyre  v.  United  States^ 
17  Wall.,  191.)  But  if  something  in  the  nature  of  a  delivery 
were  necessary,  it  has  often  been  held  that  the  recording  of  a  deed 


602  LeRoy  r.  Clayton. 

by  the  ajrantor.  even  without  the  knowledge  of  the  grantee,  is  a 
constructive  delivery.  So  the  giving  of  it  to  a  third  party  for  the 
grantee,  to  be  delivered  to  him,  is  a  delivery.  In  Marbury  v. 
Mddison,  the  court  say,  upon  the  hypothesis  that  delivery  is 
necessary,  that  "it  is  not  necessary  that  deliveiy  should  be  made 
personally  to  the  grantee   of  the  office.     It   never   is  so  made. 

*  *  *  If.  then,  the  act  of  livery  be  necessary  to  give  validity 
to  the  commission,  it  has  been  delivered,  when  executed  and 
given  to  the  secretary  for  the  purpose  of  being  sealed,  recorded 
and  transmitted  to  tlie  party.  But.  in  cases  of  all  letters-patent, 
certain  solemnities  are  I'equired  by  law,  which  solemnities  are 
the  evidences  of  the  validity  of  the  instrument.  A  formal  deliv- 
ery is  not  one  of  them."  (1  Cr.,  159-60:  see,  also,  o  Barn,  and 
Cress.,  671  ;  Tibbuls  v.  Jacobs.  31  Conn.,  428  ;  Stevens  v.  Hatch, 
6  Minn.,  64  ;  Mitchell  v.  Rjjav,  8  Oh.  St.,  387  :  4  Oh.,  74  :  19  Oh., 
18  ;  8  Oh.,  87.)  The  patent  in  this  case  was  recorded  in  the 
proper  records,  and  transmitted  to  the  survej^or  general  for 
delivery  to  the  owner  of  the  rancho,  and  the  acts  mentioned  herein 
were  as  effectual  to  pass  the  title  as  if  the  patent  had  been  deliv- 
ered by  the  Commissioner  of  the  General  Laud  Office  to  the  pat- 
entee in  person,  and  had  been  formall}'  accepted  by  him. 

An  acceptance  is  presumed  in  such  cases,  unless  the  contrary 
appears.     (See  authorities  last  cited.) 

If  the  title  vested  under  the  patent,  the  Commissioner  of  the 
General  La^d  Office  could  not,  of  his  own  motion,  divest  it  by 
canceling  the  patent  or  the  record  of  the  patent  without  the 
knowledge  or  consent  of  those  interested.  {Lick  v.  Bias,  30 
Cal.,  65  ;  37  Cal.,  437.) 

But  it  is  insisted,  on  the  part  of  the  defendants,  that  the  issue 
of  the  patent  of  March  30.  1866,  completed  the  proceeding  in  the 
case  of  the  Guadaloupe  rancho  ;  that  from  that  moment  the  Com- 
missioner of  the  General  Land  Office  was  functus  officio;  that  all 
his  subsequent  acts  were  necessarily  void  for  want  of  power  ;  and 
that  the  first  patent  is  tlie  onl}'  valid  patent.  This,  to  my  mind, 
pi-esents  the  most  difficult  question  in  the  case.* 

If,  for  instance,  the  acts  of  Congress  upon  the  subjecit  had  been 
wholly  repealed  pending  the  proceedings  to  confirm  the  Guadaloupe 
grant,  and  the  land  department  had,  nevertheless,  gone  on  and 
completed  the  proceedings,  and  issued  the  patent  in  all  respects, 
in  the  form  in  which  it  now  appears,  the  patent  would,  doubtless, 
iave  been  void  for  want  of  any  authority  to  complete  the  proceed- 


LeRoy  v.  Clayton.  603 

ing,  and  issue  the  patent.  All  jurisdiction  would  have  been  with- 
drawn. The  patent,  although  in  the  semblance  of  a  record  in 
such  cases,  would  really  be  no  public  record,  lor  the  want  of  juris- 
diction in  the  officer  to  make  it.  And  this  want  of  power  would 
be  an  available  defense  to  an  action  to  recover  lands  depending 
on  the  patent. 

So,  if  the  issue  of  the  first  patent,  as  found  in  this  case,  did 
full}^  complete  the  proceeding  for  the  confirmation  of  that  grant, 
and  absolutely  vest  the  title  in  the  confirmees,  willing  or  unwilling ; 
if  therelty  the  power  of  the  Commissioner  of  the  General  Land 
Office  under  the  statute,  Iwad  been  fully  exhausted  wdth  respect  to 
that  specific  grant,  without  authority  under  anj'  circumstances, 
to  reopen  the  case,  all  subsequent  proceedings.  I  think,  must  be 
void  for  want  of  power  ;  and  this  want  of  power  is  a  good  defense 
to  the  action. 

Such.  I  also  think,  would  have  been  the  result  had  the  parties 
holding  the  grant  acquiesced  in  the  action  of  the  land  office,  and 
accepted  the  patent ;  l)ut  they  did  not  acquiesce  or  accept  it. 
On  the  contrary,  the  patent  was  at  once  repudiated  when  brought 
to  their  knowledge,  and  an  application  promptly  made  to  have  it 
recalled  on  the  ground  that  proper  notice  of  the  approval  of  the 
survey  and  plat  had  not  been  given  as  required  by  the  statute, 
and  that  the  survey  was  erroneous. 

In  the  case  of  an  old  grant  in  Missouri,  in  Muguire  v.  Tyler,  the 
vSupreme  Court  held,  that  -where  a  patent  has  issued  to  one  who 
protests  against  the  survey  on  which  it  is  made,  and  the  record 
shows  that  he  never  accepted  it,  the  Secretary  of  the  Interior  may 
recall  it."     (8  Wall.,  651,  683  ;  so,  also,  1  Black,  199.) 

In  that  case  it  appeared  that  the  grant  had  been  improperly 
located.  Rut  the  power  to  recall  the  patent  after  it  has  been 
issued  with  the  consent  of  the  patentee,  when  it  does  not  cover 
the  land  to  which  the  latter  is  entitled,  necessarily  involves  the 
power  to  examine  and  determine  whether  the  grant  has  been 
properly  located.  If  the  Commissioner  of  the  General  Land  Office 
has  the  power  to  act  at  all  in  such  a  case,  that  ends  the  question, 
for  that  constitutes  jurisdiction. 

Jurisdiction  has  often  been  defined  by  the  Supreme  Court  to  be 
■'the  power  to  hear  and  determine."  {Grignon's  Lessee  x.  J  star 
et  al.,  2  How..  338.) 

And  again:  "The  jurisdiction  of  tlie  court  cannot  depend  upon 
its  decision  upon  the  merits  of  the  cause  brought  before  it,  but 


604  Le  Roy  y.  Clayton. 

upon  the  right  to  hear  and  decide  at  all."  {Ex  parte  Wntkina, 
7  Pet.,  572  ;  see,  also,  6  Pet.,  709  :  12  I^et..  718  :  3  Pet..  205  ;  12 
Pet.,  633  ;   In  re  Bogart,  ante.) 

The  same  definition  applies  to  other  officers  entrusted  with 
powers  as  well  as  to  courts. 

In  the  case  of  Magnire  v.  Tyler,  the  proceedings  were  fully 
completed,  and  the  patent  issued.  There  was  no  mere  clerical 
error,  or  excess  of  jurisdiction.  Just  such  a  patent  was  issued, 
and  in  such  a  case,  and  to  such  a  partj'^  as  was  contemplated.  It 
was  simply  erroneous.  An  error  occurred  in  the  course  of  tlie 
proceeding  in  the  due  exercise  of  jurisdiction  as  distinguished 
from  a  case  of  want  of  jurisdiction.  The  officers  of  the  govern- 
ment misjudged,  and  determined  that  he  was  entitled  to  the 
wrong  land. 

Yet.  upon  the  refusal  of  tlie  patentees  to  accept  the  patent,  and 
upon  their  application  it  was  recalled.  The  Supreme  Court  twice 
determined  that  it  was  pi'operly  done.  I  can  perceive  no  distinc- 
tion between  that  case  and  this. 

The  present  case  is,  in  all  essential  respects,  similar.  The 
Commissioner  of  the  General  Land  Office,  acting  upon  the  certifi- 
cate of  the  surveyor  general,  issued  a  patent.  Immediately  the 
parties  in  interest  refused  to  accept  it,  and  made  a  showing  which, 
at  the  time,  satisfied  the  Commissioner  of  the  General  Land  Office 
that  the  statutory  notice  had  not  been  given,  and  that  the  land 
was  not  properly  located.  If  there  was,  in  fact,  any  error,  it  was 
an  error  in  the  exercise  of  jurisdiction — in  the  determination  of 
the  question  of  fact — like  that  in  the  cases  cited. 

He  recalled  the  patent,  and  other  proceedings  were  had,  which 
ran  through  a  period  of  nearly  four  years,  embracing  a  new  sur- 
vey, appi'oval,  etc.,  and  resulted  in  a  new  patent  in  accordance 
with  the  last  survey.  Now,  if  the  Commissioner  of  the  General 
Land  Office  was  functus  officio  on  the  issue  of  the  first  patent,  he 
must  have  been  so  on  the  issue  of  the  patent  in  question  in 
Maguire  v.  Tyler,  for  at  the  time  of  the  recall,  both  cases  were 
essentially  alike. 

It  is  true  that,  under  tlie  fifth  section  of  the  act  of  1868,  the 
survey,  under  the  circumstances  prescribed,  becomes  final,  and 
has  all  the  force  and  effect  of  a  patent.  But  it  has  no  greater 
force  than  the  patent.  The  patent  is  the  formal,  final,  and 
authentic  record.  If  the  patent  itself  can  be  recalled  and  cor- 
rected upon  the  apjjlication  of  the  patentee,  when  erroneous,  the 


Le  Roy  v.  Clayton.  605 

survey,  which  is  of  uo  greater  force,  can  be  corrected  b}^  the  same 
authority.  Besides,  one  of  the  very  questions  for  the  commis- 
sioner of  the  land  office  to  determine  on  the  application  to  recall 
the  patent  and  correct  the  survey  was,  whether  all  the  acts  neces- 
sary to  make  the  survey  final,  had  been  in  fact  performed. 

The  certificate  of  tlie  surveyor  ijeneral,  upon  which  he  acted  in 
issuing  the  patent  was,  doubtless,  prime  facie  evidence,  which. 
in  the  absence  of  anything  to  the  contrary,  justified  him  in  its 
issne.  But  it.  was  not  nece-ssarily  conclusive.  The  statute  does 
not  so  provide.  On  the  application  to  recall  tlie  patent,  other 
evidence  was  offered  tending  strongly  to  show  that  the  certificate 
of  the  surveyor  general,  as  to  a  legal  publication,  was  erroneous 
in  point  of  fact,  and  the  survej^  erroneous. 

The  case  of  Mag n ire  v.  Tyler  settles  the  question  that  the 
power. exists  to  recall  a  patent  which  the  patentee  declines  to 
accept,  on  the  ground  that  it  was  erroneously  issued  upon  the 
application  and  with  the  consent  of  the  patentee,  when  there  is 
found  to  l)e  error  ;  and  as  a  predicate  for  such  action,  necessarily, 
the  i)ower  remains  to  determine  the  question  whether  such  error 
exists  as  will  justify  a  recall.  And  it  seems  to  me  to  cover  this 
case. 

The  jurisdiction  then  had  not  been  wholly  exhausted  by  the 
issne  of  the  patent :  and.  as  before  said,  if  there  was  still  left  power  to 
recall  a  patent  merelj^  erroneously  issned,  the  authority  rem.ained 
to  inquire  and  determine  whether  it  was  erroneously  issued.  There 
might  be  error  in  that  determination,  but  it  would  be  an  error  in 
the  exercise  of  jurisdiction  in  determining  whether  there  had  been 
a  legal  notice  or  a  proper  survey,  and  not  an  act  performed  with- 
out jurisdiction.  And  such  error  cannot  be  reviewed  in  this 
court  in  this  kind  of  action.  The  patent  having  been  recalled  in 
the  exercise  of  a  lawful  power,  the  case  stood  as  if  it  never  had 
issued,  and  the  subsequent  proceedings  are  all  regular  and  in  due 
form.  The  patent  of  1870  is  regular  upon  its  face,  and,  accord- 
ing to  the  recitals,  issued  in  a  case  fullj'  authorized  b_y  law.  If 
it  is  to  be  defeated,  it  is  by  m^ter  do  Jiors  the  patent,  and  upon 
the  grounds  either  of  erroi*.  mistake,  or  fraud  in  some  part  of  the 
proceedings  resulting  in  the  patent,  and  not  from  want  of  power 
to  act  upon  a  proper  showing  in  any  of  the  necessary  steps  taken. 

The  patent  itself  is  a  solemn  record  of  the  government,  and 
not  subject  to  be  impeached  collaterally  from  witliout  in  an  action 
at  law  in   the  national  courts.      It  is  so  regarded  upon  principles 


606  LeRoy  v.  Clayton. 

of  public  policy  resting  upon  the  same  grounds  that  forbid  a  col- 
lateral impeachment  of  a  judgment  of  a  court  of  competent  juris- 
diction, valid  upon  its  face,  whatever  errors  or  fraudulent  prac- 
tices may  have  intervened  in  the  proceedings. upon  which  it  was 
obtained.  In  Doll  v.  Header,  16  Cal.,  325,  Mr.  Chief  Justice  Field 
well  says  : 

"  If  the  authority  to  issue  the  patent  depend  upon  tlie  existence 
of  particular  facts  in  reference  to  the  condition  or  location  of  the 
property,  or  the  performance  of  certain  antecedent  acts,  and  offi- 
cers have  been  appointed  for  the  ascertainment  of  these  matters 
in  advance  who  have  passed  upon  them  and  given  their  judgment, 
then  the  patent,  though  the  judgment  of  the  officers  be  in  fact 
eiToneous,  cannot  be  attacked  collaterally  by  parties  showing- 
title  subsequently  from  the  same  source,  much  less  by  those  who 
show  no  color  of  title  in  themselves.  In  such  cases  the  parties 
without  title  cannot  be  heard,  and  the  parties  with  subsequent 
title  must  seek  their  remedy  by  scire  facias  or  bill,  or  information 
to  revoke  the  first  patent  or  limit  its  operation."  And  Mr.  Jus- 
tice Grier,  in  United  States  v.  Stone,  2  Wall..  535,  says :  "  A 
patent  is  the  highest  evidence  of  title,  and  is  conclusive  as  against 
the  government  and  all  claiming  under  junior  patents  or  titles. 
until  it  is  set  aside  or  annulled  by  some  judicial  tribunal.  In 
England  this  was  originally  done  by  scire  facias,  but  a  bill  in 
chancerj^  is  found  a  more  convenient  remedy." 

Upon  these  principles  no  erroi',  if  any  there  is,  of  the  Commis- 
sioner of  the  General  Land  Office  in  determining  the  question 
whether  there  was  a  proper  ground  for  recalling  the  first  patent, 
and  in  recalling  it  is  subject  to  review  in  this  case.  If  there  is 
any  groimd  of  mistake,  fraud  or  otherwise,  which  would  justify 
the  repeal  or  annulling  of  the  patent  of  1870,  that  object  must  be 
accomplished  in  some  direct  proceeding  in  the  proper  court  taken 
for  that  purpose  against  the  patent. 

An  equitable  defense  to  an  action  at  law  is  not  available  in 
this  court,  and  in  this  action  the  patent  is  conclusive.  The  dif- 
ference between  the  first  and  IdSt  patent  is  this  :  The  last  was 
promptly  acquiesced  in  and  accepted,  while  the  first  was  rejected 
by  the  interested  parties,  and  the  patent  recalled  on  their  appli- 
cation on  a  showing  to  the  satisfaction  of  the  commissioner  of 
error.  The  contest  between  the  parties  in  the  same  proceeding 
had  not  yet  ended.  There  was  a  reopening  of  the  proceeding 
for  further  hearing  before  acceptance,  and  with  the  consent  of 


1 


Le  Roy  v.  Clayton.      "  607 

both  parties.  I  desire  it  to  be  understood  that  I  have  not  con- 
sidered the  effect  of  a  refusal  of  the  claiuiant  to  accept  a  patent 
issued  in  this  class  of  cases  in  any  other  aspect  than  as  bearing 
upon  the  question  of  power  to  recall  a  patent  and  re-examine  the 
survey,  with  his  assent  and  upon  his  application. 

The  defendants,  as  authority  for  cancellins;  the  last  patent, 
cite  Bell  v.  Ilea  me.  19  How.,  262.  and  Dosvell  v.  De  Lu  Lanza, 
20  How.,  29. 

But  these  cases  are  not  like  the  present.  They  dei)end  upon 
different  principles. 

fn  tfie  last  case  John  Bell  had  purchased  the  land  and  got  his 
certificate  of  purchase.  By  a  clerical  error  in  the  land  office  the 
name  of  James  Bell  was  returned  and  the  patent  made  out  in  his 
name,  but  delivered  to  Joint,  Bell,  the  true  party.  He  returned 
it  and  had  a  new  patent  issued  in  the  proper  name.  John  Bell 
was  the  purchaser.  He  was  the  one  to  whom  it  was  intended  to 
patent  the  land.  The  patent  was  delivered  to  him.  There  was 
no  purchase  by  Jamen  Bell  and  no  proceedings  by  him,  or  in  his 
name,  upon  which  to  base  a  patent  other  than  that  which  by  a 
clerical  error  accidently  crept  into  the  return  to  the  General  Land 
Office.  There  was  no  error  in  judgment  in  determining  a  matter 
in  the  progress  of  the  proceeding,  for  there  was  no  proceeding  at 
all  by  the  nominal  patentee.  It  was  like  commencing  and  pro- 
secuting an  action  against  John  Bell  till  coming  to  the  verdict, 
which  is  accidentally  returned  and  judgment  thereon  rendered  in 
the  name  of  James  Bell,  who  has  never  been  a  party  to,  or 
appeared  in  the  action.  Besides,  as  in  the  ease  of  Maguire  v. 
Tyler,  the  patent  was  returned  by  and  corrected  with  the  assent 
and  at  the  request  of  the  real  party  in  interest.  The  other  case 
is  similar  only  it  does  not  appear,  except  by  implication,  at  whose 
request  the  patent  issued  in  the  name  of  the  wrong  party  was 
canceled.  In  both  of  these  cases  there  were  no  proceedings  by 
purchase  or  otherwise  anterior  to  the  issuing  of  the  patents  upon 
which  to  base  them — nothing  upon  which  the  commissioner  was 
authorized  to  act  in  these  cases  ;  nothing  to  call  the  jurisdiction 
of  the  land  office  into  action  at  all  in  respect  to  the  nominal 
patentees.     The  patents  were  never  intended  for  them. 

There  must  be  Judgment  for  the  plaintiff  ijcWi  costs,  and  it  is  so 
ordered. 

Note.— 1.  Held  the  same  in  Watterson  v.  Bennett,  18  La.  Ann.,  250. 
Neither  can  the  President  annul  and  set  aside  the  approval  of  his 


608  Le  Roy  V.  Jamison. 

predecessor,  of  the  sale  made  by  an  Indian  reservee  of  his  hind.     God- 
frey v.  Beardshy^  2  McLean,  412. 

An  exemplification  of  a  patent  under  the  seal  of  the  land  office,  is 
admissible  as  evidence,  without  proof  of  the  loss  or  destruction  of  the 
patent,     Paffeiftou  v.   Winn.  ">  Vet.,  233. 


Thkodohk   Lk  Hov   r.   Tobias  15.  Jamison   ep  .m,. 

Circuit  Court,  District  of  California,  June.  I87."J. — .">  Sawyer.  3(J9. 

1.  AuthorHi/of  Commifi.sioner  of  the  General  Land  Office.' — Previous  to  the 
act  of  June  14,  ISGO,  vesting  jurisdiction  in  the  District  Court  of  the 
United  States  for  California,  over  surveys  of  confirmed  Mexican  land 
claims,  the  Commissioner  of  the  General  Land  OtHce  exercised  a 
general  supervision  and  control  of  all  executive  duties  relating  to 
private  claims  to  land,  and  the  issuing  of  patents  therefor. 

Such   authority   was  vested   in   him  by  the  act  of  July  4,  1836. 
;      reoraanizinff  the  General  Land  Oftice.     It  embraced  the  examination 
I      of  all  .surveys  of  such  private  claims,  and  their  correction  until  made 
I      conformable  with  the  right  conferred  upon  the  claimant,  by  legisla- 
tive  act  or  judicial  decree.     This  autliority  continues  under  the  act 
j      of  18(i4.     By  the  act  of  I860,  and  so  long  as  that  act  was  in  force,  his 
power  in   this  respect  was  withdrawn.     'Ihat  act  established  a  sys- 
tem by  whieli  all  surveys,  when  made  pursuant  to  its  requirements, 
and  advertised  in  a  certain  waj'.  became  so  far  final  as  to  leave  to 
the  commissioner  the  simple  ministerial  duty  of  issuing  patents  there- 
on.    The  course  of  procedure  in  sucli  cas'  s  stated. 
Final  surrey  of  Muxic(ni  land  grant  ;  Puhliraiion  of  notice. — 'l"o  render  a 
I       survey  final  under  the  act  of  1860,  when  not  submitted  to  the  dis- 
trict court,  it  was  necessary  that  the  publication  required  should  be 
made,  and  though  in  issuing  a  patent  upon  a  survey  when  final,  the 
commissioner  had  a  mere  ministerial  duty  to  perform,  there  was 
this  preliminary  duty  cast  upon  liim.  to  see  that  the  necessary  publi- 
cation had  been  made.      Tlie  certificate  of  the  surveyor-general  was 
only  prima  facie  evidence  of  the  fact. 

3.  *■'■  Place  of  pnMication    defined.'''' — By  the  language  :  ^' place  of  piihlica- 

tion  "  in  the  statute  of  1860,  requiring  the  surveyor-general  to  give 
notices  of  surveys  made  by  him  by  publication  once  a  week  for  four 
weeks  in  two  newspapers,  one  of  which  was  to  be  in  a  paper  where 
the  '•  place  of  publication  "  was  nearest  to  the  land,  reference  is  had 
to  the  place  where  the  paper  is  first  issued  ;  that  is  given  to  the  pub- 
lic for  cireulation,  and  not  to  the  place  where  the  paper  is  subse- 
quently distributed. 

4.  liotice  ;  what  it  nnist  date. — A  notice  published  by  the  surveyor-general 

that  he  had  examined  and  approved,  under  the  act  of  1860,  of  a  par- 
ticular rancho  confirmed  to  designated  parties,  is  not  a  compliance 


Le  Roy  v.  Jamison.  609 

witli  the  law   requiring-  pnl)]ieatioii  of  notice,  that  he  had  caused  a 

survej'  and  plat  to  be  made  of land  confirmed  ;  orliad  approved 

of  one  made  by  others  under  his  direction. 

5.  Cler/rs  cer/ificuk'  ;   Of  u-huf    eridfvce.—'lhc  clerk  of  the  United  States 

District  fourt  can  cei-tify  to  copies  of  papers  and  orders  in  his  oHice 
also,  perliaps,  totlie  absence  of  papers  and  (jrders  in  particular  cases. 
His  certificate  is  not  evidence  of  any  other  facts  stated  therein.  \ 

6.  Commis.rinner's  rier.imon  ;  /^eci  r;/".— The  determination  of  the  commis-     \ 

sioner,  upon  leceiving  a  survey  transmitted  to  him  as  published 
under  the  act  of  isrio,  as  to  the  regularity  and  sufticiency  of  the 
alleged  publication  is  conclusive,  unless  reviewed  and  corrected  on 
appeal  by  the  Secretary  of  tlie  Interior.  Tlie  riglit  of  the  commis- 
sioner, upon  proper  application  to  reconsider  any  matter  previou-sly 
determined  by  him.  must  be  exercised  l>efore  proceedings  upon  the 
original  ruling  liave  been  taken  and  concluded. 

7.  Ar.cei'fiiNCf'  of  pa/ ait. —'So  one  can  be  compelled  by  the  governmmt  to 

become  a  purchaser,  or  even  to  take  a  gift.  In  order  that  the  patent 
f)f  the  government  may  take  eflTect  as  a  conveyance,  so  as  to  bind  the 
party  to  whom  it  Is  executed,  and  transfer  the  title  to  him  it  is  essen- 
tial that  it  sliould  be  accepted,  i  he  acceptance  by  the  grantee  of 
the  conveyance,  where  no i)ersonal  obligation  is  impo.^ed,  will  alwaj^s 
be  presumed  in  tlie  absence  of  expressed  dis.^ent,  whenever  the  con- 
veyance is  placed  in  a  condition  for  acceptance. 

8.  Piit<:iit.wheiiincoiidif,ionforacn;ptaiice.—'Vhe  deed  of  the  government 

that  is  its  patent,  is  in  a  condition  for  acceptance,  when  the 
last  formalities  required  by  law  of  the  oJiicers  of  the  government 
are  complied  witli.  i'lu^e  formalities  consist  in  passing  the  instru- 
ment under  the  seal  of  the  United  States,  and  in  recording  it  in  the 
records  of  the  land  office.  'I'he  record  stands  in  the  place  of  the 
otter  01-  delivery  in  the  case  of  a  private  deed  ;  tlie  instrument  is 
thenceforth  lield  for  the  grantee. 

9.  Of/ica.s'  j,owa\s  cmse  ivifh  rcmril  of  thr  pa/cni. — With  the  record  of  the 

patent  the  power  of  the  officers  of  the  government  over  the  instru- 
ment is  gone.  Whether  it  thereafter  remam  in  the  land  office,  or  be 
transmitted  to  a  local  officer  for  manual  delivery  to  the  patentee  its 
validity  and  operation  are  unaffected.  Its  acceptance  by  the  gran- 
tee will  then  be  conclusively  presumed,  unless  immediately  ui)on 
knowledge  of  its  issue,  his  refusal  to  accept  it  is  explicitly  declared, 
and  such  refusal  is  commiuiicated  to  the  land  office, 
in.  Wlhii  jiriiir  appUcaiion  for  puienl,  evidence  of  acceptance. — A  previous 
application  for  a  patent,  is  evidence  of  its  acceptance  if  the  patent 
conforms  to  the  application,  i'atents  issued  upon  contirmation  of 
Mexican  grants  in  California  are  of  this  character.  To  obtain  them 
is  the  object  of  the  proceedings  instituted  under  the  act  of  18.")!,  and 
when  a  patent  is  issued  in  confoi-mity  with  proceedings  regularly 
taken  under  the  a'ct,  it  takes  effect  without  reference  to  any  subse- 
quent action  of  the  patentee.     But,  if  tli(>  patent  be   issued  without 

39 


610  Le  Roy  v.  Jamison. 

a  final  survey  conformable  to  the  decree,  its  acceptance  cannot  be 
conclusively  presumed  from  the  fact,  that  the  patentee  instituted 
the  proceedings  for  the  confirmation  of  his  claim.  He  can  in  such 
case,  by  prompt  expression  of  dissent,  communicated  to  the  proper 
department,  prevent  the  patent  becoming  so  far  binding  upon  him 
as  to  preclude  a  re-examination  of  the  surveys,  as  to  the  errors  alleged^ 
11.  Acceptance  of  patent  waicer  of  objections. — Objections  by  the  patentee 
to  the  survey  of  a  confirmed  Mexican  land  claim,  are  waived  by  his 
acceptance  of  the  patent. 

Before  Mr.  Justice  Fikld  : 

This  was  an  action  to  recover  the  possession  of  certain  real 
property  in  the  county  of  Santa  Barbara,  and  by  stipulation  was 
tried  by  the  court  without  the  intervention  of  a  jury.  Both  par- 
ties claimed  the  demanded  premises  under  patents  of  the  United 
States,  issued  upon  the  confirmation  of  grants  of  the  former  Mexi- 
can government.  Both  patents  co^-ered  the  demanded  premises. 
The  patent  under  which  the  plaintiff  claimed,  bears  date  in  March, 
1870,  and  the  grant  upon  which  it  is  founded  was  made  in  March, 
1840.  The  patent  under  which  the  defendants  claimed,  bears 
date  in  October,  1873,  and  the  grant  upon  which  it  rests  was 
issued  in  December,  1844.  The  plaintiff  having  the  earlier  patent 
and  the  elder  grant  was  entitled  to  recover,  unless  the  validity  of 
the  patent  or  the  correctness  of  the  survey  of  the  premises  cov- 
ered by  it  was  successfully  assailed.  The  defendants  contended 
that  the  patent  was  invalid  and  that  the  survey  was  incorrect. 

In  support  of  their  position  that  the  patent  was  invalid  they 
produced  the  opinion  and  decision  of  Commissioner  Drummond, 
of  tlie  General  Land  Office,  made  in  June,  1872,  directing  a  can- 
cellation of  the  patent,  and  the  decision  of  the  Secretary  of  the  Inte- 
rior affirming  his  action.  The  following  is  Commissioner  Drum- 
mond" s  opinion  : 

"Department  of  the  iNTEpaoR, 

"General  Land  Office, 
"Washington,  D.  C  June  12,  1872. 
"  Sir  :  I  have  carefully  examined  the  papers  in  the  case  of  the 
rancho  Guadalupe,  Diego  Olivera  and  Teodore  Arellanes,  con- 
firmees, granted  by  Juan  B.  Alvarado,  March  21,  1840,  confirmed 
by  the  board  of  land  commissioners  for  California,  December  6, 
1853,  and  by  the  United  States  district  court,  September  25,  1855, 
and  appeal  dismissed  February  5,  1857. 

"Under    instructions,    dated    January   15,    1858,  from    J.  W. 


Le  Roy  v.  Jamison.  611 

Mandeville.  United  States  surve3^or  general  for  California, 
United  States  deput}-  surveA'or  Brice  M.  Henry,  made  a  survey 
of  this  rancho ;  but  a  protest  against  said  survey  having  been 
filed  July  6,  1859,  b_v  Diego  Olivera,  it  was  set  aside  and  a  resur- 
vey  ordered,  which  resurvey,  containing  32,408.03  acres,  was 
made  in  September,  1860,  by  United  States  deputy  surveyor  J. 
E.  Terrell,  and  the  survey  and  plat  approved  by  Surveyor  Gen- 
eral Mandeville  on  the  twenty -ninth  of  January,  1861.  This  sur- 
vey was,  on  the  thirty-first  of  May,  1861,  certified  by  said  sur- 
veyor general  to  have  been  published  for  four  successive  weeks 
in  the  Santa  Barbara  Gazette,  the  first  publication  being  on  the 
fourteenth  of  February,  1861,  and  the  last  on  the  seventh  of 
March,  1861  :  and  also  in  the  Los  Angeles  Star,  the  first  publica- 
tion being  on  the  twenty-third  of  February,  1861,  and  the  last  on 
the  sixteenth  of  March  of  the  same  year,  the  form  of  said  publi- 
cation being  as  follows,  as  shown  by  a  copy  certified,  in  1870,  by 
United  States  surveyor  general  Sherman  Day  : 

•United  States  Slrveyor  General's  Office, 

'San  Francisco,  February  12,  1861. 
•  In  compliance  with  the  first  section  of  an  act  of  Congress 
approved  June  14,  1860,  regulating  surveys  of  private  land  claims, 
surveyed  in  pursuance  of  the  thirteenth  section  of  an  act  entitled 
'  An  act  to  ascertain  and  settle  private  land  claims  in  the  State 
of  California,'  approved  March  3,  1851,  have  been  examined  and 
approved  b}^  me. 

•  Name  of  rancho,  Guadalupe. 
'  Confirmee,  Diego  Olivera  et  ul. 

■^  TV  W  ^  T^  ^ 

'  The  plats  will  be  retained  in  this  oflRce  subject  to  inspection 
for  four  weeks  from  the  date  of  this  publication. 

'James  W.  Mandetllle, 
'  United  States  Surveyor  GeneraV 

•'On  the  twenty -third  of  May.  1863,  John  W.  Wheeler,  clerk  of 
the  United  States  district  court  for  the  southern  district  of  Cali- 
fornia, certified  'that  due  notice  by  publication,  in  manner  and 
form  as  required  by  law,  has  been  made  by  the  surveyor  general 
of  the  United  States  for  the  State  of  California,  in  the  matter  of 
the  approved  survey  of  the  lands  called,  '  Guadalupe,'  con- 
firmed to  the  claimant  in  the  above-entitled  cause  of  Diego 
Olivera  et  ul.   v.    TJie   United    States,   and   •  that  the  fall  period 


^12  T^E  Roy  v.  Jamison. 

of  six  months  from  and  after  the  completion  of  said  publi- 
cation has  elapsed,  and  no  objections  having  been  made 
thereto  or  filed  in  my  office,  the  said  approved  survey  has  become 
final  and  the  claimant  therefore  entitled  to  a  pateut  for  the  land 
therein  contained/  In  the  same  year  E.  F.  Beale.  then  United 
States  surveyor  o;eneral  for  California,  transmitted  to  this  office  a 
copy,  duly  certified.  May  25.  1863.  of  the  plat,  field  notes,  and 
other  documents  in  the  case  as  a  basis  for  the  issue  of  a  patent, 
and  in  those  papers  the  surveyor  general,  after  stating  that  the 
rancho  under  consideration  had  been  surveyed  in  conformity  with 
the  grant  and  decree  of  confirmation,  continues  as  follows  : 

'  I  do  hereby  certify  the  annexed  map  to  be  a  true  and  accurate 
plat  of  the  said  tract  of  land  as  appears  by  the  field  notes  of  the 
survey  thereof  made  by  J.  E.  Terrell,  deputy  surveyor,  in  the 
month  of  September.  1860,  under  the  direction  of  this  office,  which, 
having  been  examined  and  approved,  are  now  on  file  therein. 

'  And  I  do  further  certify  that  in  accordance  with  the  provi- 
sions of  tlie  act  of  Congress,  approved  on  the  fourteenth  day  of 
June,  1860,  entitled  -An  act  to  define  and  regulate  the  jurisdic- 
tion of  the  district  courts  of  the  United  States  in  California  in 
regard  to  the  survey  and  location  of  confirmed  private  land  claims.' 
I  have  caused  to  be  published  once  a  week,  for  four  weeks  suc- 
cessivelv,  in  two  newspapers,  to  wit,  the  Santa  Barbara  Gazette, 
publislied  in  the  county  of  Santa  Barbara,  being  the  newspaper 
published  nearest  to  where  the  said  claim  is  located,  the  first 
publication  being  on  the  fourteenth  day  of  February.  1861.  and 
the  last  on  the  seventeenth  day  of  March,  1861  ;  also,  in  the  Los 
Angeles  Star,  a  newspaper  published  in  the  city  and  county  of 
Los  Angeles,  the  first  publication  being  on  the  twenty -third  day 
of  February,  1861,  and  the  last  on  the  sixteenth  day  of  March, 
1861.  a  notice  that  the  said  claim  had  been  surveyed  and  a  plat 
made  thereof  and  approved  by  me.  And  I  do  further  certify 
that  the  said  approved  plat  and  survey  was  retained  in  this  office 
during  all  of  said  four  weeks,  and  until  the  expiration  thereof, 
subject  to  inspection.  And  T  do  further  certify  that  no  order  for 
the  return  thereof  to  the  United  States  district  court  has  been 
served  upon  •  me.  And  I  do  further  certify  that,  under  and  by 
virtue  of  the  said  confirmation,  survey,  decree,  and  publication, 
the  said  Diego  Olivera  et  al.  are  entitled  to  a  patent  from  the 
United  States  upon  the  presentation  thereof  to  the  General  Land 
Office   for  the  said  tract  of  land,  bounded  and  described  as  fob 


I 


Le  Roy  v.  Jamison.  613 

lows,  to  wit.'      (Here  follow  the  field  notes  of  tlie  Terrell  survey.) 
••  It  appears  from  the  forejjoiiig  that  the  rancho  Guadalupe  was 
properly  and  finally  confirmed,  and  that  it  was  surveyed  by  Henry, 
objected  to,  and  resurveyed  by  Terrell  in  September,  1860. 

••  Surveyors  General  Mandeville  and  Beale  certified  that  the  plat 
and  field  notes  thereof  were  approved  in  January.  1861,  and  duly 
published,  according  to  law,  in  the  montlis  of  February  and 
March  of  the  same  year  in  the  Santa  Barbara  Gazette  and  the 
Los  Angeles  Star ;  and  the  clerk  of  the  United  States  District 
Court  for  Southern  California  certifies,  in  his  oflicial  capacity, 
that  all  the  requisites  of  the  law  had  been  complied  with,  and  that 
the  survey  of  the  ranclio  Guadalupe  was  final  by  puldication 
under  the  act  of  1860. 

"  So  far,  therefore,  as  the  official  records  of  the  surveyor  gen- 
eral's office  and  courts  show,  the  survej^  was  final.  It  was  so 
considered  by  this  office,  and  a  patent  in  accordance  therewith, 
dated  June  30.  1866,  was  prepared,  signed,  and  recorded,  and 
sent  to  the  United  States  surveyor  general  for  California  on  the 
second  of  August,  1866  ;  but  said  patent  was  never  delivered,  the 
then  owner  of  the  rancho,  John  B.  Ward,  refusing  to  accept  the 
same,  alleging  that  the  Terrell  survey  did  not  conform  to  the 
decree  of  confirmation,  and  also  that  it  was  not  final  under  the 
act  of  June  14,  1869  (12  Stat.,  p.  33),  the  requirements  of  that  act 
with  respect  to  publication  never  having  been  complied  with.  In 
this  protest  Mr.  Ward  alleges  -that  on  the  twenty -ninth  day  of 
January.  1861,  the  said  surveyor  general  filed  in  his  said  office 
an  approval  of  the  field  notes  and  plat  of  the  said  ranclio,  and 
that  subsequently  to  such  filing  no  publication  of  the  notice  of 
the  approval  was  made  in  accordance  with  the  provisions  of  the 
act  of  Congress  of  June  14,  1860,  already  recited.'  -That  it  is 
true  that  a  notice  of  the  approval  of  a  plat  of  survey  of  a  certain 
tract  of  land,  known  by  the  name  of  Guadalupe,  was  published 
in  the  Los  Angeles  Star,  the  first  publication  thereof  being  on 
the  twenty -ninth  of  September,  1880.  and  the  last  on  the 
twentieth  of  October,  1860 ;  also,  in  the  Pacljic  Sentinel  the 
first  publication  thereof  being  on  the  twenty -first  of  Septem- 
ber, 1860,  and  the  last  on  the  twelfth  of  Octolier,  1860  :  but  the 
field  notes  and  plat  of  the  rancho,  which  is  the  subject  of  the 
present  memorial,  not  having  been  approved  until  the  twenty- 
ninth  of  January,  1861.  the  publication  above  referred  to  could 
have  had  no  application  thereto,  so  that,  in  point  of  fact,  no  publi- 


614  Le  Roy  v.  Jamison. 

cation  of  the  approval  by  the  surveyor  general  of  the  field  notes 
and  plat  of  the  survey  of  the  Guadalupe  raneho.  granted  to 
Diego  Olivera  and  Teodore  Arellanes.  has  ever  been  made  accord- 
ing to  law.' 

"  In  support  of  these  allegations,  there  were  filed  three  affidavits  : 
••First.  An  affidavit  .signed  by  John  Nugent,  one  of  Mr.  Ward's 
counsel,  in  which  it  is  stated  that  up  to  July,  1868,  no  other  plat 
of  the  Guadalupe  was  ever  exhibited  or  on  file  as  the  official  plat 
approved  by  J.  W.  Mandeville,  except  one  with  the  following 
inscription  : 

•Note. — A  notice  of  the  approval  of  this  plat  of  survej^  has 
been  published  in  accordance  with  the  act  of  Congress  of  June 
15,  1860,  in  the  Los  Angeles  Star,  the  first  publication  thereof 
being  on  the  twenty-ninth  of  September,  1860,  and  the  last  on  the 
twentieth  of  October,  1860 ;  also,  in  the  paper  nearest  the  land, 
being  the  Pacific  Sentinel,  the  first  publication  thereof  being  on 
the  twenty-first  of  September,  1860.  and  the  last  on  the  twelfth  of 
October,  1860.  This  plat  has  remsiined  in  this  office  subject  to 
inspection  from  the  date  of  the  approval  thereof.' 

'•Second.  An  affidavit  signed  by  Vicente  A.  Torras.  who  was 
employed  on  the  Santa  Barbara  Gazette  in  January  and  February, 
1861,  and  who  swears  that  in  those  months  said  paper  was  pub- 
lished in  San  Francisco. 

•'Third.  An  affidavit  signed  by  S.  B.  BrinkerhoflT.  in  which  it  is 
stated  that  said  affiant  •  was  a  subscriber  to  a  paper  known  as  the 
Santa  Barbara  Gazette,  and  that  of  his  own  knowledge  the  place 
of  publication  of  said  paper  was  in  the  city  of  San  Francisco,  and 
not  in  the  county  of  Santa  Barbara.' 

■'Upon  these  affidavits  this  office  decided,  in  letter  dated  Octo- 
ber, 22  1866,  addressed  to  the  United  States  surveyor  general  for 
California,  that  the  publication  was  not  in  conformity  with  the 
law  of  1860.  and  was,  therefore,  void.  A  new  survey  was  ordered, 
made,  and  subsequently  published  under  the  act  of  1864,  approved 
by  the  Commissioner  of  the  General  Land  Office,  and  patent 
issued  in  accordance  therewith,  which  patent  was  sent  to  the 
surveyor  general's  office,  but  recalled  before  delivery. 

•'Although  two  witnesses,  Torras  and  Briukevhoti',  swear  posi- 
tively that  the  Santa  Barbara  Gazette  was,  in  February  and  March, 
1861,  published  in  San  Francisco,  D(ma  Longina  Yriarte  de  Torras, 
widow  of  V.  I.  Torras,  one  of  the  publishers  in  1861,  of  the  Santa 
Barbara  G^azeWe,  swears  that  from  January  1  to  October  17,  1861, 


LeRoy  /:.  Jamison.  615 

said  pa[)er  was  i>rinted  at  San  Franicisco,  and  as  soon  as  printed 
sent  to  Santa  Barbara  for  distribiition  ;  and  M.  W.  Kimberly  testi- 
fied that  during  tlie  ^years  1860  and  1861.  there  was  no  paper 
publislied  in  Santa  Barbara  county,  except  tlie  Santa  Barbara 
Gazette. 

•There  is  also  filed  with  these  affidavits  a  copy  ol'  said  paper, 
headed  as  follows  :  -Santa  ^vixhsii's.  Gazette.  Organ©  de  la  Pob- 
lacion  Espanola  en  California.  Santa  Barbara,  Jueves,  17  de 
Octubre  de  1861."  It  would  seem,  therefore,  that  said  paper 
was  printed  at  San  Francisco,  but  distributed  at  Santa  Barbara, 
and  that  Torras  and  Brinkerholf  must  be  understood  as  testifying 
in  effect  that  in  their  opinion  the  place  of  printing  and  publica- 
tion must  be  identical.  With  their  conclusions,  which  seem  to 
have  materially  affected  the  opinion  of  this  oflSce  when  the  publica- 
tion of  the  Terrell  survey  was  rejected,  I  cannot  agree.  The 
paper  on  its  face  purports  to  be  published  at  Santa  Barbara,  and 
it  was  first  circulated  in  that  county,  and  in  my  opinion,  a  decision 
from  these  facts  that  said  paper  was  published  at  San  Francisco 
cannot  be  reached  by  an  intrepretation  of  the  word  '  published ' 
in  accordance  with  its  usual  and  ordinary  meaning,  nor  in  accor- 
dance with  the  proper  interpretation  of  the  word,  as  used  in  the 
act  of  June  14.  1860.  The  design  of  the  publication  prescribed 
by  the  act  of  1860,  was  to  convey  to  parties  in  interest,  notice 
that  their  claims  had  been  surveyed,  and  to  afford  them  an  oppor- 
tunity to  file  objections  and  contest  said  surv^eys  ;  and  that  object 
was  as  well,  if  not  better,  accomplished  by  a  publication  in  the  • 
manner  stated  than  it  could  have  been  in  au}^  other  manner  under 
the  peculiar  circumstances  surrounding  the  case.  That  would  be 
sufficient  to  satisfy  the  requirements  of  the  spirit  of  the  law,  but 
in  my  opinion  the  proceedings  in  the  matter  were  also  in  strict 
conformity  with  the  letter  of  the  act  of  1860. 

•'In  Worcester's  Dictionary,  •publication'  is  defined  as  'the  act 
of  publishing  or  making  public,'  etc. ;  in  Webster's  Dictionary, 
the  same  word  is  defined  as  '  the  act  of  publishing  or  making 
known  notification  to  the  people  at  large,  either  by  words,  writing, 
or  printing  ;"  in  Bouvier's  Law  Dictionary, '  publication '  is  defined 
as  'the  act  by  which  a  thing  is  made  public,'  and  'publisher'  as 
'  one  who  by  himself  or  his  agent  makes  a  thing  publicly-  known  ; 
one  engaged  in  the  circulation  of  books,  pamphlets,  and  other 
papers  ;'  and  the  same  authority  defines,  'printing'  as  'the  art  of 
impressing  letters  ;  the  art  of  making  books  or  papers  by  impres- 


616  Le  Roy  f.  Jamison. 

sing  leoible  characters.'  Many  other  aiitliorities  might  be  added, 
but  these  are  considered  sufficient  to  show  the  marked  diflerence 
between  the  generalh^  recognized  meaning  of  the  words  •  published' 
and  '  printed.'  and  sufficient  also  to  show  that  the  publication  in 
the  case  under  consideration  was  i)roperly  made  under  the  law ; 
for  while  it  is  admitted  that  tiie  Santa  Barbara  Gazette  was  printed 
at  San  Francisco,  it  is  clearly  shown  that  said  paper  was  first 
•  made  public  to  the  people  at  large'  (i.  e.  j)ublished)  in  the  county 
of  Snnta  Barbara. 

••  The  remaining  objections  as  heretofore  stated,  to  the  publica- 
tion of  the  Terrell  surve5%  are  that  said  publication  was  not  made 
in  Feljruar}'  and  March,  1861,  in  the  Los  Angeles  Star  and  Santa 
Barljara  Gazette,  as  certified  by  the  surveyor  general,  but  that  the 
publication  was  made  in  September  and  October,  1860,  in  the  Los 
Angeles  Star  and  Pacijfc  SentineL  which  publication  was  prior  to 
the  date  when  the  plat  and  field  notes  of  said  survey  were  approved  j 
on  the  twenty -ninth  day  of  January,  1861.  In  support  of  these 
allegations  there  is  no  evidence,  except  the  affidavit  of  Mr.  Ward, 
then  owner  of  the  rancho.  and  of  John  Nugent,  one  of  Mr.  Ward's 
counsel  in  the  case. 

••  The  first  named  does  not  positively  admit  that  the  survey  of  the 
Guadalupe.  Diego  Olivera  et  al.,  confirmees,  was  ever  published, 
though  he  says  a  certain  rancho,  called  Guadalupe,  was  published, 
but  Mr.  Nugent,  in  effect,  swears  that  as  late  as  July.  1866.  no 
plat  and  field  notes  of  the  rancho  under  consideration  were  ever 
•exhibited  as  the  official  plat  and  field  notes  approved  by  Snrvej'or 
General  Mandeville.  but  one  which  had  on  its  face  a  note  showing 
said  publication  to  have  been  made  in  September  and  October, 
1860.  in  the  Los  Angles  Star  and  the  Pacific  SentineL  and  also 
showing  the  approval  of  said  plat  and  field  notes  to  have  been  made 
in  January,  1861. 

•'By  this  showing  it  would  seem  that,  even  admitting  the  facts 
set  forth  by  the  ranch  owner  and  his  attorney,  the  Guadalupe 
survey  was  final  by  publication  so  far  as  these  objections  are  con- 
cerned, as  the  Honorable  Secretary  of  the  Interior,  in  the  case  of 
the  rancho  Tajauta,  decided  on  the  twenty-first  of  February,  1872. 
that  a  publication  by  the  surveyor  general  that  a  certain  survey 
had  been  approved,  was  in  itself  a  sufficient  approval  prior  to 
publication  to  satisfy  the  requirements  of  the  act  of  fourteenth  of 
June,  1860,  notwithstanding  the  plat  bore  upon  its  face  an 
approval  subsequent  to  said  publication.     But  I  am  not  satisfied 


Le  Roy  r.  Jamison.  617 

of  the  correctness  of  the  facts  stated  in  said  affidavits,  for  the 
record  evidence  of  the  surveyor  general's  office  and  the  district 
court,  contradicts  said  affidavits  in  every  important  particular ; 
and  let  it  be  once  estal)lished  that  testimony,  without  cross-exam- 
ination, of  two  interested  witnesses  shall  be  sutKc-ient  to  overturn 
the  certificates  of  three  sworn  officials  of  the  government,  two 
surveyors  general  and  the  clerk  of  a  United  States  district  court 
having  jurisdiction  in  the  matter,  and  the  surveys  of  the  numerous 
ranchos  considered  final  by  publication  are  no  longer  fixed  upon 
that  firm  basis  contemplated  by  the  law.  Nothing  but  the  most 
clear  and  positive  evidence  ought  to  be  admitted  to  set  aside  such 
a  I'ecord,  particularly  when,  as  in  this  case,  it  was  acquiesced  in 
by  the  parties  in  interest,  at  the  date  when  it  was  made,  and  for 
years  thereafter. 

■  That  the  Guadalupe  rancho,  Diego  Olivera  et  ul.,  confirmees, 
was  published  in  the  Los  Angeles  Star  and  the  Pacific  Sentinel  in 
September  and  October,  186(J,  is,  in  mj^  opinion,  not  proven : 
neither  is  the  insinuation  in  Mr.  Ward's  protest,  that  said  rancho 
might  have  been  mistaken  for  some  other  rancho  Gaudalupe, 
entitled  to  any  weight,  for  there  is  but  one  rancho  of  that  name 
confirmed  to  Diego  Olivera  et  aJ.    in  the  State  of  California. 

"A  careful  examination  of  the  papers  in  the  case  upon  which 
this  office  rejected  the  Terrell  survey,  and  also  the  papers  filed 
subsequent  to  such  rejection,  leads  me  to  the  conclusion  that  such 
action  was  erroneous,  and  that  said  survey  was  properly  approved 
on  the  twenty-ninth  of  January,  1861,  and  published  in  the  months 
of  February  and  March  of  the  same  year  in  the  Los  Angeles  Star 
and  the  Santa  Barbara  Gazette,  and  no  objections  thereto  having 
been  made  within  the  time  allowed  by  law,  it  became  final  by 
publication  under  the  provisions  of  the  act  of  Congress  approved 
June  14,  1860.  (12  Stats.,  p.  33.)  The  patent  executed  in  June, 
1866.  was,  therefore,  correctly  executed,  and  is  a  good  and  valid 
patent  for  the  rancho  aforesaid,  and  is  herewith  transmited  for 
delivery  to  the  party  or  parties  properly  entitled  thereto,  said 
patent  having  been  legally  executed,  the  subsequent  patent  was 
without  authority  of  law,  and,  therefore,  void  ab  initio,  and.  being 
now  in  the  possession  of'^this  office,  will  be  canceled. 

"  You  will  give  notice  of  this  decision  to  all  parties  in  interest, 
allowing  sixty  days  from  date  of  notice  for  appeal  to  the  Honor- 
able Secretary  of  tlie  Interior,  at  the  expiration  of  which  time,  if 
appeal  be  taken,  you  will  forward  all  the  papers  in  the  ease,  as 


618  Le  Roy  v.  Jamison. 

in  other  cases  of  appeal,  and  if  no  appeal  be  taken,  yon  will  so 
notify  this  office. 

"Very  respectfnlly, 

"Willis  Driimmond, 

'•  Commissioner^ 

They  also  produced  an  indorsement  of  that  commissioner  upon 
the  patent,  declaring  its  cancellation.  It  is  as  follows  :  "  Can- 
celed, see  decision  dated  June  12.  1872.  of  General  Land 
Office,  affirmed  by  the  Honorable  Secretary  of  the  Interior,  March 
26,  1873.  Willis  Drummond,  Commissioner  General  Land  Office, 
April  10.  1873."  (For  other  facts,  see  Le  Roy  v.  Clayton.  2  Saw- 
yer. 4!)5.) 

Subsequently,  on  the  twenty-third  of  the  same  month,  this  can- 
cellation was  revoked  by  order  of  the  Secretary'  of  the  Interior, 
and  the  revocation  is  also  indorsed  upon  the  patent.  The  secre- 
%2iXj  states,  in  his  communication  to  the  commissioner,  that  the 
revocation  was  directed  to  enable,  the  claimant  to  appear  in  court, 
and  correct  what  he  asserts  to  have  been  an  error  committed 
against  his  rights,  and  not  for  the  purpose  of  revoking  or  altering 
the  decision  made. 

In  connection  with  these  documents,  which  were  admitted  sub- 
ject to  the  objection  of  the  plaintiff,  the  defendants  produced 
another  patent  to  the  same  parties,  issued  in  June.  1866.  which  is 
referred  to  in  the  decision  of  Commissioner  Drummond.  and  this 
patent,  they  contend,  was  the  only  valid  patent  which  could  be 
issued  of  the  premises  confirmed  under  the  Mexican  grant  to  Oli- 
vera  and  Arellanes,  from  whom  the  plaintiff  dei'aigns  his  title. 

That  grant  was  of  a  rancho  or  tract  of  land  known  by  the  name 
of  Guadalupe.  It  was  presented  to  the  board  of  land  commis- 
sioners in  1852,  was  confirmed  by  the  board  in  1853.  and  by  the 
decree  of  the  district  court  of  the  United  States  in  1857.  This 
decree  became  final  by  stipulation  of  the  Attorney  General,  aban- 
doning an  appeal  taken  from  it  to  the  Supreme  Court  of  the 
United  States. 

In  September.  I860,  the  claim  thus  confirmed  was  surveyed 
under  instructions  of  the  surveyor  general  for  California  by  his 
deputy.  Terrell,  and  the  surve}'  and  plart  of  the  premises  were 
approved  by  him  on  the  twenty-ninth  of  January,  18G1.  On  the 
thirty -first  of  ^lay  following,  that  officer  filed  in  his  office  a  certifi- 
cate to  the  effect  that  the  rancho  confirmed  had  been  survej^ed, 
and  that  the  survey  and  plat  were  approved   by  him  on  the  daj' 


Le  Roy  v.  Jamison.  619 

mentioned  ;  that  he  had.  diirinii^  the  previous  Februar}^  and 
March,  caused  to  V)e  publislied  once  a  week  for  four  week  succes- 
sively, in  two  newspapers,  to  wit,  theSanta  Barbara  Gazeltf\  pub- 
lished in  the  county  of  Santa  Barbara,  and  the  Los  Angeles  Star, 
published  in  the  city  and  county  of  Los  Angeles,  a  notice  that 
the  land  had  been  thus  surveyed,  and  that  the  survey  and  plat 
had  been  approved  by  him  ;  that  the  survey  and  plat  were  retained 
in  his  office  during  the  four  weeks,  subject  to  inspection,  and  that 
no  order  for  their  return  to  the  United  States  District  Court  had 
been  served  upon  him.  At  the  time  the  survey  and  plat  tluis 
mentioned  were  made  and  this  certificate  was  filed,  J.  W.  Mande- 
ville.  Esq.,  was  the  surveyor  general  of  California.  On  the 
twenty -fifth  of  May,  1863,  nearly  two  years  after  this  paper  was 
filed,  Edward  Y.  Beale,  Esq.,  who  was  the  successor  in  office,  as 
surveyor  general,  of  Mandeville,  transmitted  to  the  Commissioner 
of  the  (xeneral  Land  Office  at  Washington,  a  copy  of  the  plat  of 
the  tract  surveyed,  with  the  certificate  contained  in  the  above 
opinion  of  Commissioner  Drummond.  that  he  had  caused  the  pub- 
lication of  notice  that  the  survey  of  the  tract  had  been  made  in 
the  Santa  Barbara  Gazette  and  Los  Angeles  Httir,  as  stated  in  the 
certificate  of  his  predecessor.  The  new  surveyor  general  evi- 
dently copied  the  language  of  his  predecessor,  and  inadvertently 
ascribed  to  himself  an  act  whicli  could  only  have  been  done  by 
that  officer. 

Upon  the  transcript  of  the  proceedings  for  tlie  confirmation  of  the 
claim  and  this  certificate  of  Surveyor  General  Beale,  a  patent 
was  issued  from  th.e  General  Land  Office  to  tlie  confirmees  of  the 
grant  on  the  thirtieth  of  June,  1866,  signed  by  the  President,  under 
the  seal  of  the  United  States,  and  recorded  in  the  proper  records 
of  the  land  office.  This  patent  was,  in  August.  1886.  transmitted 
to  the  survej'Or  general  of  California,  to  be  delivered  to  the  par- 
ties entitled  to  its  possession.  Immediately  upon  receiving  notice 
of  its  issue,  John  B.  Ward,  at  the  time  the  owner  of  the  premises 
and  entitled  to  the  patent,  refused  to  accept  it,  alleging  that  the 
survey  of  the  premises  did  not  conform  to  the  decree  of  confirma- 
tion, and  was  not  final  under  the  act  of  1860,  as  the  requirements 
of  that  act  with  respect  to  publication  liad  not  been  complied 
with.  Soon  afterwards  he  presented  to  Commissioner  Wilson,  of 
the  General  Land  Office,  certain  documentary  evidence  to  estab- 
lish his  allegations,  accompanied  with  a  petition,  that  the  patent 
m-ight  be  recalled  and  a  new  survey  ordered. 


620  Le  Roy  r  Jaaiison. 

Thut  evidence  showed  that  the  Santa  Barbara  Gi(zette,  in  whifh 
pu])li('ation  was  made,  was  printed  and  published  in  the  city  of 
San  Francisco,  and  not  in  the  county  of  Santa  Barbara.  The 
evidence  at  least  satisfied  tlie  commissioner  that  the  publication 
was  not  made  in  conformity  with  the  law  of  18()().  and  also  that 
the  survey  was  erroneous.  The  patent  of  1866  was  accordinsi:!^^ 
recalled  by  him  and  a  new  survey  ordered,  under  the  act  of  1864. 
Such  survey  was  made  in  1867  and  duly  advertised,  and  was  for- 
warded by  the  surveyor  general,  with  his  approval,  to  the  com- 
missioner. Upon  this  survey  a  new  patent  was,  on  the  eighteenth 
of  March,  1870.  issued  to  the  same  parties  as  the  original  patent, 
signed  by  the  President,  under  the  seal  of  the  United  States,  and 
recorded  in  the  proper  records  of  the  land  office.  This  patent 
was  then  forwarded  by  the  commissioner  by  mail  to  the  surveyor 
general  of  California  for  delivery  to  the  party  entitled  to  its  pos- 
session. Some  days  afterwards,  and  before  its  arrival  in  Cali- 
fornia, the  commissioner  telegraphed  to  the  surveyor  general  to 
return  the  patent,  and  it  was  accordingly  returned.  Two  years 
afterwards,  in  June.  1872.  Commissioner  Drummond,  the  succes- 
sor of  Commissioner  Wilson,  reviewed  the  latter's  action,Miad  in 
1866,  in  directing  the  new  survey  and  his  subsequent  action  in  issu- 
ing a  new  patent,  and.  as  shown  by  his  decision  above  given,  held 
that  such  action  was  without  authority  and  void ;  that  the  Terrell 
survey  of  1861  was  conclusive,  and  accordingly  directed  a  cancel- 
lation of  the  second  patent,  and  in  its  place  a  delivery  to  the 
patentees  of  the  recalled  patent  of  1866. 

Evidence  was  also  given  as  to  the  boundary  line  dividing  the 
grants  upon  which  the  two  patents  were  issued,  which  is  sufficiently 
stated  in  the  opinion  of  the  court. 

The  case  was  held  under  advisement  for  some  weeks,  when 
judgmeiTt  was  rendered  in  favor  of  the  plaintiff. 

John  B.  Felton  c^-   Win.  H.  Patterson  for  the  plaintiff. 

Gray  6i-  Haven,  D.  M.  Delmas  and  S.  F.  Lieb  for  defendants. 

Mk.  Justice  Fip:ld  : 

If  the  facts  stated  in  the  opinion  of  Commissioner  Drummond 
annexed  to  the  i)atent  of  1870,  cannot  be  considered  as  facts  in 
evidence,  there  is  nothing  before  the  court  im])airing  the  validity 
of  that  patent.  The  indorsements  on  tiie  copy  produced,  show 
a  revocation  b}^  the  secretary  of  the  cancellation  directed  by  the 
commissioner:  and  if  titles  can  l)e  affected  in  this  irregular  way, 


Le  Roy  r.  Jamison.  621 

can  be  divested  mid  reinvested  by  indorsement  of  the  officers  of 
tlie  land  office  upon  its  records,  tlie  revocation  is  of  equal  validity 
with  the  cancellation.  The  case,  as  thus  presented,  would  be  that 
of  two  patents  to  the  same  parties,  the  second  covering  a  larger 
tract  than  the  first,  with  the  admission  of  counsel  that  the  second 
was  issued  upon  allegations  by  the  owner  of  error  in  the  survey 
of  tlie  premises  covered  by  the  first,  and  of  its  insufficient  pidtli- 
cation  under  the  act  of  1880. 

Witliout  other  knowledge  on  the  subject,  we  could  not  say  that  tlie 
second  patent  was  invalid.  Cases  may  often  occur  where  a  second 
patent  would  be  necessary  to  prevent  gross  wrong  to  the  patentee. 
If,  for  instance,  a  confirmation  and  a  survey  embraced  thi'ee 
distinct  tracts,  and  fjy  mistake  tlie  survey  returned  and  the  patent 
issued  covered  only  two  of  them,  we  do  not  see  why.  upon  a  ]n'oper 
presentation  of  the  fact,  and  application  of  the  claimant,  the  com- 
missioner miglit  not  issue  a  second  patent,  either  for  the  omitted 
tract  or  one  embracing  the  three  tracts  together. 

The  administration  of  the  land  department  would  be  very  defec- 
tive if  a  mistake  of  this  kind  could  not  be  remedied  upon  the 
consent  of  the  parties,  before  the  acceptance  of  the  patent  liad 
rendered  the  proceeding  a  closed  transaction. 

If.  then,  any  consideration  is  to  be  given  to  the  argument  of  coun- 
sel, that  the  second  patent  in  the  case  was  properly  canceled 
because  the  first  patent  was  conclusive  of  the  rights  of  the  parties, 
the  facts  stated  in  that  opinion  must  be  treated  as  in  evidence  ; 
they  were  apparently  so  regarded  by  counsel  on  the  argument, 
and  for  the  present  we  shall  so  treat  them. 

We  are  therefore  required,  for  the  disposition  of  the  case,  to 
consider  the  validity  of  the  action  of  the  two  Commissionefs  of 
the  General  Land  Office — that  of  "Wilson,  in  canceling  the  patent 
of  1866,  and  issuing  th.e  one  of  1870.  and  tliat  of  Drummond,  in 
annulling  the  action  of  Wilson,  and  directing  cancellation  of  tlie 
patent  of  1870. 

Previous  to  the  act  of  June  14,  1860,  the  Commissioner  of  the 
General  Land  Office  exercised  a  general  supervision  and  control 
of  all  executive  duties  relating  to  private  claims  to  land,  and  the 
issuing  of  patents  therefor.  Such  authority  was  vested  in  him  by 
the  act  of  Juh'  4.  1836.  reorganizing  the  General  Land  Office.  It 
necessarily  embraced  the  examination  of  all  surveys  of  such  pri- 
vate claims,  and  their  correction,  until  made  conformable  with 
tlie  right  conferred  upon  the  claimant  by  legislative  act  or  judicial 


622  Lr  Roy  d.  Jamison. 

decree.  The  surveys  of  private  land  claims  under  Mexican 
grants  in  California,  were  thus  subject  to  his  control.  He  was 
invested  with  this  necessary  power  to  prevent  the  consequences 
to  individuals  as  well  as  to  the  public,  of  accident,  inadvertence, 
irregularity,  or  frand.  {Castro  v.  Hendricks.  23  How.,  443.)  His 
duty  in  these  cases  were  to  compel  conformity  in  the  survey 
made  with  the  decree  of  confirmation,  where  that  contained  a 
description  of  the  land  sufficiently  specific  to  guide  the  survej'or. 
but  if  it  contained  no  such  description,  then  to  compel  a  survey 
in  a  compact  form,  so  far  as  such  compactness  was  consistent 
with  the  natural  features  of  the  country,  and  the  previous  selec- 
tion of  the  confirmee,  as  shown  by  his  residence,  cultivation  and 
sales. 

This  authority  of  the  commissioner  continues  under  the  act  of 
1864.  But  by  the  act  of  1880,  and  so  long  as  that  act  was  in 
force,  his  power  in  this  respect  was  withdrawn.  That  act  estab- 
lished a  system  by  which  all  surveys,  when  made  pursuant  to  its 
requirements,  and  advertised  in  a  certain  way,  became  so  far  final 
as  to  leave  to  the  commissioner  the  simple  ministerial  duty  of 
issuing  a  patent  thereon. 

It  provided  that  the  surveyor  general,  when  he  had  caused, 
in  compliance  witii  the  thirteenth  section  of  the  act  of  1851,  a 
private  land  claim  to  be  surveyed,  and  a  plat  thereof  to  be 
made,  should  give  notice  that  the  same  had  been  done,  and  that 
the  plat  and  survey  were  approved  by  him,  by  publication  once  a 
week  for  four  weeks  in  two  newspapers,  one  of  which  was  to  be 
in  a  paper  "where  the  place  of  publication  was  nearest  to  the 
land,"  and  the  other  in  a  paper  published  in  San  Francisco,  if  the 
land  was  situated  in  the  northern  district  of  California,  and  in 
Los  Angeles,  if  situated  in  the  southern  district.   . 

The  act  also  provided  that,  until  the  expiration  of  the  publica- 
tion, the  survey  and  plat  should  be  retained  in  the  surveyor 
general's  office  subject  to  inspection  ;  that  upon  the  application  of 
any  party  whom  the  district  court  or  a  judge  thereof  should  deem 
to  have  such  an  interest  in  the  survey  and  location  of  a  land 
claim,  as  to  make  it  just  and  proper  that  he  should  be  allowed  to 
intervene  for  its  protection,  or  on  motion  of  the  United  States,  the 
district  court  should  order  the  survey  and  plat  to  be  returned  into 
court  for  examination  and  adjudication  ;  that  when  thus  returned 
notice  should  be  given  by  public  advertisement,  or  in  some  other 
form  prescribed  by  rule,  to  all  parties  interested,  that  objection 


Le  Roy  v.  Jamison.  623 

had  been  made  to  the  survey  and  location,  and  admonishint^ 
them  to  intervene  for  the  protection  of  their  interests  ;  tliat  such 
parties  liaving;  intervened  might  take  testimony  and  contest  the 
survey  and  location,  and  that  on  hearing  the  allegations  and 
proofs,  the  court  should  render  its  judgment  approving  the  surv^ey, 
if  found  to  be  accurate,  or  correcting  or  modifying  it,  or  annulling 
it  and  ordering  a  new  survey,  if  found  to  be  erroneous,  and  gen- 
erally to  exercise  control  over  the  survey  until  it  was  made  to 
conform  to  the  decree  of  confirmation. 

And  the  act  then  declared  that  when  after  publication,  as  thus 
required,  no  application  was  made  for  an  oi'der  to  return  the  sur- 
vey into  court,  or  the  application  was  refused,  or  if  granted  the 
court  had  appi'oved  the  survey  and  location,  or  reformed  or  modi- 
fied it  and  determined  the  true  location  of  the  claim,  it  should  be 
the  duty  of  the  surveyor  general  to  transmit,  without  delay,  the 
plat  or  survey  of  the  claim  to  the  General  Land  Office  ;  and  that 
the  patent  for  the  land,  as  surveyed,  should  for tJivith  be  issued 
therefor  :  and  that  "the  plat  and  survey  so  finally  determined  by 
publication,  order,  or  decree,"  as  the  same  might  be,  should  -  have 
the  same  effect  and  validity  in  law,  as  if  a  patent  for  said  land  so 
surveyed  had  been  issued  by  the  United  States."  It  is  plain, 
from  this  language,  that  it  was  the  intention  of  Congress  to  with- 
draw from  the  commissioner  the  supervision  and  control  of  sur- 
veys subsequently  made  of  private  land  claims  under  Mexican 
grants  in  California. 

But  there  was  still  a  duty  resting  upon  that  officer.  To  render 
-the  survey  final,  when  not  subjected  to  the  judgment  of  the  dis- 
trict court  (which  acquired  jurisdiction  by  a  return  to  it  of  the 
survey),  it  was  necessary  under  the  act.  as  already  seen,  that  the 
publication  required  should  be  made.  This  was  au  essential  pre- 
requisite to  its  finality  :  nothing  else  could  be  substituted  f6r  it. 
And  though,  in  issuing  a  patent  upon  a  survey  when  'final,  the 
commissioner  had  a  mere  ministerial  duty  to  perform,  there  was 
this  preliminary  dut}^  cast  upon  him  to  see  that  the  necessary 
publication  had  been  made. 

The  certificate  of  the  surveyor  general  was  evidence  of  this  fact, 
but  it  was  only  prima  facie  evidence  ;  unquestioned,  it  might  be 
taken  as  conclusive ;  when  questioned,  the  commissioner  could 
go  behind  it.  The  documents  presented  to  him  disclosed  the  fact 
that  no  publication  of  notice  of  the  Terrell  survey  had  been  made 
in  a  paper  published  nearest  the  land.    They  allege  that  the  Santa 


624  Le  Roy  ?;.  Jamison. 

Barbara  Gazette  was,  in  January  and  February.  1861,  published 
in  the  city  of  San  Francisco,  and  not  in  the  county  of  Santa  Bar- 
bara, which  is  distant  several  hundred  miles  from  that  city.  Of 
these  documents  one  was  an  affidavit  made  by  a  person  employed 
upon  the  Gazette,  and  the  other  by  a  subscriber  to  the  paper. 
Both  of  them  were  made  upon  personal  knowledge,  and  were 
positive  in  their  character. 

And  yet  an  affidavit  of  the  widow  of  one  of  the  publishers  of 
the  paper,  made  four  years  afterwards,  that  the  Santa  Barbara 
Gazette,  though  printed  in  San  Francisco  between  January  and 
October,  1861,  was  sent  as  soon  as  printed  to  Santa  Barbara  for 
distribution,  was  considered  by  Commissioner  Drummond  six 
years  afterwards  sufficient  to  overthrow  these  allegations.  This 
distribution  constituted,  according  to  his  judgment  in  reversing 
the  action  of  his  predecessor,  the  publication  of  the  paper  in  that 
county  within  the  meaning  of  the  act  of  Congress. 

Assuming  for  the  present  that  Commissioner  Drummond  pos- 
sessed at  the  time  authority  to  annid  the  action  of  his  predecessor 
if  deemed  erroneous,  we  do  not  agree  with  him  in  his  conclusion 
as  to  the  sufficiency  of  the  publication.  It  was  not  alleged  in  the 
affidavit  of  the  widow,  and  it  could  not  be  presumed  from  the  mere 
heading  of  the  paper,  admitted  to  be  printed  elsewhere,  that  the 
entire  issue  was  sent  to  Santa  Barbara,  though  intended  princi- 
pally for  circulation  there. 

Certainly  a  presumption  of  the  kind  was  very  sli^fht  ground 
upon  which  one  public  officer  could  undertake  to  set  aside  the 
deliberate  act  of  his  predecessor,  had  years  before,  upon  wIucIl 
rights  of  property  rested. 

The  statute  says  that  the  notice  must  be  published  in  a  paper 
where  the  place  of  its  publication  is  nearest  the  land,  not  where 
the  place  of  its  distribution  is  nearest.  In  one  sense  a  paper  is 
published  in  everj^  place  where  it  is  circulated  or  its  contents  are 
made  known  ;  but  it  is  not  in  that  general  sense  that  the  language, 
"place' of  publication"  in  the  statute  is  used.  That  language 
refers  to  the  particular  place  where  the  paper  is  first  issued — that 
is,  given  to  the  public  for  circulation.  Nearly  all  the  great  dailies 
published  in  the  city  of  New  York  are  distributed  in  different 
parts  of  the  country.  Large  packages  of  these  papers  are  daily 
made  up  and  immediately  transmitted  to  California,  where  the 
packages  are  opened  and  the  papers  distributed.  A  large  number 
of  them  in  this  mode  no  doubt  find  their  way  to  the  county  of 


Le  Roy  c.  Jamison.  625 

Santa  Barbara,  yet  it  would  do  violent-c  to  our  apprehension  of 
the  term  to  say  that  these  papers  are  pul>lished  in  Santa  Barbara, 
in  the  sense  of  the  statute.  No  one  so  understands  the  term  in 
ordinary  par  lance,  and  il  is  not  used  in  the  statute  in  any  technical 
sense. 

But  there  is  disclosed  in  tlie  opinion  ol'  Commissioner  Druin- 
mond  another  fact,  which  makes  it  clear  that  no  sufficient  or  legal 
publication  was  made,  and  that  is,  that  the  notice  published  omits 
the  material  statement  required  by  the  statute,  that  a  survey  and 
plat  oi"  the  claim  confirmed  had  been  made  and  approved  by  the 
surveyor  general.  All  that  is  stated  in  the  notice  is  that  the 
surveyor  general  had  examined  and  approved  of  the  rancho 
(Tuadalu])e.  confirmed  to  Olivera  and  others,  and  that  the  plats 
would  be  retained  in  his  office,  subject  to  inspection,  for  four 
weeks  from  the  date  of  the  publication.  A  party-might,  perhaps. 
reasonal)ly  infer  that  reference  was  thus  intended  to  some  survey 
of  the  land,  but  he  would  not  be  obliged  to  take  notice  from  the 
statement  that  the  surveyor  general  had  caused  a  survey  and  plat 
to  be  made,  or  had  approved  of  one  made  by  others  under  his 
directions. 

The  commissioner  appears  to  have  given  controlling  weight,  in 
overruling  the  action  of  his  predecssor,  to  the  certificates  of  Sur- 
veyoi's  General  Mandeville  and  Beale,  and  of  a  clerk  of  the  United 
States  District  Court.  The  certificates  were  only  prima  facie  evi- 
dence, and  before  the  patent  was  issued,  and  afterwards,  if  tl  e 
patent  w^as  properly  recalled,  the  commissioner  was  at  liberty  to  go 
behintl  them,  and  inquire  whether  notices  had  been  in  fact  published 
as  there  stated.  The  certificate  of  Surveyor  Cxeneral  Beale  as  to 
the  publication  was  of  matters  not  within  his  personal  knowledge  ; 
and  the  same  may  be  said  of  the  certificate  of  the  clerk,  so  far  as 
the  acts  of  the  surveyor  general  and  his  jjublications  were  con- 
cerned. As  to  them  it  was  without  any  value  whatever.  The 
clerk  can  certify  to  copies  of  papers  and  orders  in  his  office  :  also, 
perhaps,  to  the  absence  of  papers  and  orders  in  particular  cases, 
but  that  is  the  extent  of  his  authority.  His  certificate  would  have 
been  just  as  valuable  as  evidence  had  it  related  to  the  acts  of  the 
commissioner  himself,  and  yet  the  commissioner  twice  refers  to  it 
as  having  some  potentiality  in  the  matter. 

But  aside  from  all  considerations  of  this  kind,  the  case  cannot 
be  disposed  of  by  any  judgment  we  may  form  of  the  evidence 
which  controlled    Commissioner  Wilson.     We    have   commented. 

40 


626  Le  Roy  v.  Jamison. 

upon  tliat  evidence  because  upon  its  supposed  insufficiency  Com- 
missioner Drummond  justified  liis  attempted  annulment  of  the 
action  of  his  predecessor  and  tlie  cancellation  of  the  second  patent. 
If  the  patent  of  1866  could  be  recalled  at  all.  the  sufficiency  of 
that  evidence  is  not  a  sul)ject  for  consideration  in  this  form  of 
action,  any  more  than  the  sufficiency  of  the  evidence  upon  which 
any  other  step  in  the  progress  of  the  proceeding  for  a  patent  was 
taken.  As  we  have  already  stated,  it  was  the  duty  of  the  com- 
missioner, upon  receiving  a  survey  transmitted  to  him  as  published 
under  the  act  of  1860,  to  examine  into  the  regularity  and  suffi. 
ciency  of  the  alleged  publication.  That  was  a  matter  submitted 
by  the  law  to  his  determination  ;  and  that  determination,  whether 
correctly  or  erroneously  made,  was  conclusive,  unless  reviewed  and 
corrected  on  appeal  by  his  superior — the  Secretaiy  of  the  Interior. 

The  commissioner  has  undoubtedly  a  right  within  a  reasonable 
period,  upon  proper  application,  to  reconsider  any  matter  pre- 
viously determined  by  him,  but  such  right  must  be  exercised 
before  proceedings  upon  the  original  ruling  have  been  taken  and 
concluded. 

It  would  be  a  dangerous  doctrine,  creating  great  insecurity  in 
titles,  if  the  correctness  of  his  action  upon  a  matter  over  which 
he  has  jurisdiction  could  years  afterwai'ds  be  annulled  by  his  suc- 
cessor because  of  supposed  errors  of  judgment,  upon  the  suffi- 
ciency of  evidence  presented  to  him  ;  and  it  would  be  without 
precedent  and  against  principle  for  a  court  of  law  in  an  action  of 
ejectment  upon  a  patent  to  inquire  collaterally  into  the  sufficiency 
of  such  evidence  to  justify  the  action  of  the  commissioner,  and 
to  submit  that  question  to  the  determination  of  a  jury.  The 
patentee,  if  such  a  proceeding  were  possible,  would  find  his  title 
established  in  one  case  and  rejected  in  another,  according  to  the 
varying  judgment  of  different  juries. 

It  becomes  important,  therefore,  to  determine  when  a  patent  of 
the  United  States  for  land  takes  effect — that  is,  when  it  becomes 
operative  as  a  conveyance,  and  binding  upon  both  parties  ;  and 
under  what  circumstances  it  may  be  recalled  after  it  has  passed 
under  the  seal  of  the  United  States,  and  been  recorded.  Some 
confusion  has  arisen  in  the  consideration  of  this  subject  from  not 
distinguisliing  between  acts  which  bind  the  government  and  acts 
which  bind  the  patentee.  It  has  been  assumed,  rather  than 
stated,  both  in  judicial  decisions  and  in  the  argument  of  coun- 
sel, that  when  the  government  is  bound,  the  patentee  is  bound 


Le  Roy  v.  Jamison.  627 

also,  without  reference  to  his  assent  on  the  subject ;  but  nothing 
is  further  from  tlie  fact.  No  one  can  be  compelled  by  the  gov- 
ernment, any  more  than  by  an  individual,  to  become  a  purchaser, 
or  even  to  take  a  gift.  No  one  can  have  property,  with  its  bur- 
dens or  advantages,  tiu'ust  upon  him  without  his  assent.  In 
order,  therefore,  that  the  patent  of  tiie  government,  like  the  deed 
of  a  private  person,  may  take  effect  as  a  conveyance,  so  as  to 
bind  the  party  to  whom  it  is  executed,  and  transfer  the  title  to 
him,  it  is*  essential  that  it  should  be  accepted.  As  the  possession 
of  property  is  universally,  or  nearly  so,  considered  a  benefit,  the 
acceptance  by  the  grantee  of  the  conveyance  transferring  the 
title,  where  no  personal  obligation  is  imposed,  whether  the  con- 
veyance be  a  patent  of  the  government  or  the  deed  of  an  individual, 
will  always  be  presumed  in  the  absence  of  express  dissent,  when- 
ever the  conveyance  is  placed  in  a  condition  for  acceptance. 
There  is,  iu  this  respect,  no  diflerence  between  the  patent  of  the 
government  and  the  deed  of  a  private  individual.  The  question, 
then,  in  all  cases,  is,  when  is  the  conveyance  in  a  condition  for 
acceptance  by  the  grantee?  What  act  of  the  grantor  is  necessary 
to  place  the  instrument  in  a  condition  for  acceptance?  When  in 
that  condition,  its  operation  is  no  longer  subject  to  the  control  of 
the  grantor  ;  that,  then,  depends  upon  the  grantee. 

The  answer  to  the  question  is  not  difficult.  If  the  instrument 
be  the  deed  of  a  private  individual,  it  is  in  a  condition  for  accept- 
ance when  it  is  offered  for  delivery,  that  is,  when  the  grantor  has 
parted  with  its  possession,  or  the  right  to  retain  it,  in  order  that 
it  may  be  given  to  the  grantee.  {Jackson  v.  Bunla'p,  1  Johnson's 
Cases,  116;  Jackson  v.  Fheljjs,  12  John.,  418;  Jackson  v.  Bodle, 
20  Id.,  184;  Church  v.  Gilman,  15  Wendell,  656;  Hidkk  v.  Sco- 
ville,  4  Gilman,  159  ;  Bidlitt  v.  Taylor,  34  Miss.,  741.)  If  the 
Instrument  be  the  deed  of  the  government,  that  is,  its  patent,  it  is 
in  that  condition  when  the  last  formalities  required  by  law  of  the 
officers  of  the  government  are  complied  with.  Those  formalities 
consist  in  passing  the  instrument  under  the  seal  of  the  United 
States,  and  in  recording  it  in  the  records  of  the  land  office.  By 
these  acts,  open  and  public  declaration  is  made  tiiat,  so  far  as  the 
general  government  is  concerned,  the  title  of  the  premises  i\as 
been  transferred  to  the  grantee.  The  record  stands  in  the  [lace 
of  the  offer  for  delivery  in  the  case  of  a  private  deed  ;  the  instru- 
ment is  then  in  a  condition  for  acceptance,  and  is  thenceforth  held 
for  the  grantee.     And  so  the  authorities  are,  that  the  grantee  in 


628  Le  Roy  v.  Jamison. 

such  case  takes  by  matter  of  record,  the  law  deeming,  as  says 
Mr.  Justice  Story,  speaking  for  the  Supreme  Court,  "the  grant  of 
record  of  equal  notoriety  with  an  actual  tradition  of  the  land  in 
the  view  of  the  vicinage."     {Green  v.  Liter  et  a.L,  8  Cranch,  247.) 

In  case  of  a  private  deed  it  is  essential  that  the  grantor  should 
part  with  his  possession  or  theright  to  retain  it,  for  until  then  he 
may  alter  or  destroy  it.  But  not  so  with  the  government  deed  ; 
witli  tiie  close  of  the  record  the  poWer  of  the  officers  of  the  gov- 
ernment over  the  instrument  is  gone.  Whether  it  -thereafter 
remain  in  the  land  office  or  be  transmitted  to  a  local  officer  for 
manual  delivery  to  the  patentee,  its  validity  and  operation  are  un- 
atieoted.  Its  acceptance  by  the  grantee  will  then  be  conclusively 
[)resumed,  unless  immediately  upon  knowledge  of  its  issue  his 
refusal  to  accept  it  is  explicitly  declared,  and  such  refusal  is 
communicated  to  the  land  otBce. 

But  assuming  the  correctness  of  this  doctrine  in  cases  of  ordi- 
nary transfers  by  the  government  of  property,  by  sale  or  gilt,  it 
is  argued  by  counsel  that  it  has  no  application  to  patents  issued 
upon  a  confirmation  of  Mexican  grants  in  California. 

The  argument  is  that  the  government  in  dealing  with  claims  to 
land  under  these  grants,  acts  as  a  sovereign  over  a  subject  within 
its  exclusive  jurisdiction  ;  and,  that  in  the  discharge  of  its  treaty 
obligations,  it  has  declared  in  what  manner  such  claims  shall  be 
presented,  by  what  officers  their  validity  shall  be  tested  and  loca- 
tion determined,  and  by  what  document  the  result  of  the  proceed- 
ings, when  favorable  to  the  claimant,  shall  be  authenticated.  The 
patent,  it  has  declared,  shall  be  issued  by  the  commissioner  when 
its  tribunals  have  adjudged  that  the  claim  is  valid  and  its  officers 
have  correctly  surveyed  it.  The  claimant,  says  the  counsel,  can- 
not prevent  the  agents  of  the  government  from  performing  the 
duties  which  the  law  has  imposed  upon  them.  He  is  as  powerless 
to  prevent  the  issue  of  the  patent  as  he  was  to  annul  the  survey 
or  control  the  decree.  The  law  commands  the  commissioner  to 
issue  the  patent,  and  with  the  discharge  of  that  duty  the  coiifirmee 
cannot  interfere.  No  act  of  the  latter  can  enlarge  or  abridge  the 
commissioner's  powers.  And  hence  the  efficacy  of  the  patent  in 
these  cases  does  not  depend  upon  the  acceptance  of  the  patentee. 

The  argument  is  plausible,  but  not  sound;  it  proceeds  upon 
the  assumption  that  an  acceptance  of  the  patent  must  be  by  assent 
subsequent  to  its  issue.  But  subsequent  assent  is  not  essential. 
A  previous  application  for   a  patent    is  as  persuasive  evidence 


Le  Roy  ^^  Jamison.  629 

of  its  acceptance  as  any  subsequent  assent;  that  is  if  tlie 
patent  conforms  to  the  application.  Patents  issued  upon  con- 
firmation of  Mexican  grants  in  California  are  of  this  character. 
To  obtain  them  is  the  object  of  the  proceedings  instituted  under 
the  act  of  1851.  The  claimant  asks  in  effect  that  his  claim  may 
be  recognized  and  confirmed  by  an  appropriate  decree ;  that  then 
a  survey  conforming  to  such  a  decree  may  be  made  in  the  mode 
prescribed  by  law,  and  that  a  patent  thereupon  be  issued  to  him. 
When  a  patent  is  thus  issued  it  will  take  effect  without  reference 
to  any  subsequent  action  of  the  patentee.  He  has  ir;  advance, 
by  his  proceedings,  signified  his  acceptance.  But  on  the  other 
hand,  if  the  patent  in  such  case  be  issued  without  a  final  survey, 
that  is,  one  determined  in  the  prescribed  mode  to  be  conformable 
to  the  decree,  its  acceptance  cannot  be  conclusively  presumed,  from 
the  fact  that  the  patentee  instituted  the  proceedings  for  the  con- 
firmation of  his  claim.  He  asks  what  the  law  authorized  him  to 
have,  and  so  far  as  the  law  is  disregarded  in  the  survey,  he  stands 
free  as  to  his  acceptance  of  the  result.  He  can  in  such  case,  b}^ 
prompt  expression  of  dissent,  communicated  to  the  proper  depart- 
ment, prevent  the  patent  becoming  so  far  binding  upon  him  as  to 
preclude  a  re-examination  of  the  survey  as  to  the  errors  alleged. 
Such  was  the  case  with  the  patent  of  1866  ;  it  was  issued  upon 
the  supposition  that  the  survey  had  become  final  by  proper  publi- 
cation. The  owner  of  the  patent  insisted  that  no  such  publica- 
tion had  been  made,  and  that  the  survey  was  not  therefore  final 
and  binding  upon  him  and  was  in  fact  erroneous,  and  on  that 
ground  refused  at  once  to  accept  the  patent  and  asked  for  a  new 
survey.  The  Commissioner  of  the  General  Land  Office  was,  upon 
this  refusal  and  petition,  at  liberty  to  look  again  into  the  alleged 
finality  of  the  surve3%  that  is,  into  the  suflSciency  of  the  publica- 
tion, for  on  no  other  ground  than  its  insuflSciency  could  he  depart 
from  the  survey  returned.  The  proceeding  was  one  between  the 
patentee  and  the  government,  and  if  the  patentees,  before  accept- 
ing the  i)atent,  consented  that  the  regular  officer  of  the  govern- 
ment might  go  behind  the  record  and  re-examine  the  matter  which 
liad  been  by  law  intrusted  to  him,  and  correct  an  error  which  had 
been  committed  by  accident,  inadvertence,  or  otherwise,  we  do 
not  perceive  how  any  third  party  can  object  and  assail  the  second 
patent  on  that  ground.  If  the  defendants,  or  the  other  third  par- 
ties, have  superior  rights  to  those  of  the  patentees,  they  are  no 
more  affected  by  the  correction  of  the  error  in  the  survey  than 


630  Le  Roy  v.  Jamison. 

they  would  have  been  had  the  error  never  been  committed.  And 
if  they  have  no  such  superior  rights  they  cannot,  upon  any  just 
principle  of  law  or  morals,  contend  that  the  error  committed  to 
the  injuiy  of  the  patentees  or  their  successor  in  interest  shall  be 
forever  irreversible.  This  is  not  a  case  where  any  doctrine  of 
■  estoppel  for  alleged  acts  or  conduct  of  the  parties  applies. 

The  proceeding  is  not  in  principle  essentially  different  from  the 
correction  of  a  deed  of  a  private  person.  If  the  deed  is  accepted  when 
tendered  the  transaction  is  closed  ;  the  title  has  passed,  and  any  sub- 
sequent alteration  of  the  instrument  or  its  destruction,  cannot 
affect  the  grantee's  title.  But  if  not  accepted  when  tendered,  the 
deed  may  be  corrected  by  the  grantor,  until  it  meets  the  views  of 
the  grantee.  The  only  difference  between  the  two  cases  arises 
from  the  fact  that  whilst  the  individual  grantor  is  not  restricted 
in  his  alterations,  the  officers  of  the  government  acting  under  the 
law,  can  only,  even  by  consent  of  the  patentee,  go  behind  the 
record  to  correct  an  error  committed  to  his  injury  in  disregard  of 
of  rights  secured  to  him  by  the  law.  The  Terrell  survey  not  hav- 
ing become  final,  and  the  commissioner  being  satisfied  that  it  was 
erroneous,  a  new  survey  was  properly  ordered  under  the  act  of 
1864,  which  was  then  alone  applicable.  It  is  conceded  that  the 
subsequent  proceedings,  including  the  issue  of  the  patent  of  1870, 
were  in  accordance  with  its  provisions  ;  our  conclusion  is.  that  the 
patent  of  1866  was  lawfull_v  recalled,  and  that  the  patent  of  1870 
was  properly  issued,  and  is  a  valid  instrument,  binding  both  upon 
the  government  and  the  patentees  and  their  successor  in  interest. 
After  it  was  recorded,  the  officers  of  the  government  were  power- 
less to  change  it  or  cancel  it,  without  the  consent  of  its  owner.  It 
was  then  his  muniment  of  title,  and  he  was  entitled  to  its  posses- 
sion whenever  demanded. 

Tlie  grant  upon  which  the  patent  held  by  the  defendants  is 
founded,  was  of  a  rancho  known  as  La  Punta  de  La  Laguna, 
adjoining  the  rancho  Guadalupe.  It  was  presented  to  the  boar^ 
of  land  commissioners  in  1852,  was  confirmed  by  that  tribunal  in 
1854,  and  by  the  decree  of  the  District  Court  of  the  United  States 
in  1857.  This  decree,  like  that  in  the  Guadalupe  case,  became 
final  by  stipulation  of  the  attorney  general,  abandoning  an  appeal 
taken  from  it  to  the  Supreme  Court  of  the  United  States.  In 
September,  1860,  the  claim  confirmed  was  surveyed,  under  instruc 
tions  of  the  surveyor  general  for  California,  by  the  same  deputy 
who  surve3'ed  the  Gunadalupe  rancho,  and  the  survey  and  [)lat 


Le  Roy  v.  Jamison.  631 

were  approved,  as  in  that  case,  on  the  twenty-nintli  of  January, 
18C)1,  and  a  similar  certificate  of  publication  of  notices  of  the  sur- 
vey and  plat  in  the  same  papers,  and  for  the  same  period,  was 
filed  by  the  surveyor  general,  on  the  thirty-first  of  May,  1861. 
From  some  unexplained  cause,  the  survey  and  plat  do  not  appear 
to  have  been  forwarded  to  the  General  Land  Office  for  a  patent, 
until  1873,  for  tlie  certificate  of  tlie  original  by  the  surveyor  gen- 
eral, incorporated  into  the  patent,  is  dated  in  July  of  that  year. 
The  patent,  as  already  stated,  was  issued  in  October,  1873. 
Whatever  defect  existed  in  the  publication  of  notices  of  the  survey 
and  plat,  in  the  Santa  Barbara  Gazette  in  the  Guadalupe  case, 
existed  in  this  case.  No  objection,  however,  appears  to  have 
been  taken  before  the  General  Land  Office  on  that  ground,  and 
objections  to  the  survey  of  that  character  were  obviated  by  the 
acceptance  of  the  patent.  The  demanded  premises  are  covered  by 
this  patent.  We  have  then,  the  case  of  two  patents  regularly 
issued,  each  embracing  the  land  in  controversy.  We  must,  there- 
fore, look  behind  them,  to  the  original  grants,  to  ascertain  which 
of  them  carried  the  better  right  to  the  premises.  As  already  said, 
they  adjoin  each  other  ;  the  eastern  line  of  one  is  the  western  line 
of  the  other.  If  we  can  find  this  line,  the  difficulty  is,  of  course, 
solved.  The  grant  of  the  Guadalupe  rancho  only  designates  gen- 
erally the  location  of  the  land,  without  giving  any  specific  bound- 
aries, but  in  April,  1840,  which  was  the  month  following  its  issue, 
possession  was  officially  delivered  to  the  grantee  by  the  magistrate 
of  the  vicinage,  a  proceeding  necessary,  under  the  law  of  Mexico, 
to  complete  investiture  of  title,  and  called  in  the  language  of  the 
country,  juridicial  possession. 

This  proceeding  involved  a  measui-ement  of  the  land,  and  its 
segregation  from  the  public  domain.  A  record  of  the  proceeding, 
showing  the  measurement  and  the  boundaries  established,  was 
made,  and  a  copy  is  produced  in  evidence. 

The  grant  of  the  rancho  La  Punta  de  la  Laguna  describes  the 
land  granted  as  bounded  by  various  designated  ranclios. 

In  January,  184'),  juridical  possession  of  these  premises  was  also 
given  to  the  grantees  by  a  magistrate  of  the  vicinage.  A  record 
of  this  proceeding  was  also  preserved,  and  a  copy  is  in  evidence. 
These  records  were  before  the  land  commission,  and  the  United 
States  District  Court,  when  the  grants  were  confirmed,  and  in  the 
decrees  of  confirmation,  the  boundaries  there  given  are  followed. 

If,  now,  we  look  at  the  decree  in  tlie  case  of  the  rmicho  of  La 


632  Miller  v.  Ellis. 

Puntti  de  la  Lagnna,  we  liud  tlie  dividiiiii:  line  between  it  and  the 
rancho  Guadalupe  thus  described  : 

"Commencino-  on  the  top  of  the  Lomas  de  la  Larga,  and  run- 
ning northerly  over  the  plain,  crossiuar  the  middle  of  the  laguua, 
the  distance  of  ten  thousand  two  hundred  varas  to  the  (^uchillo 
de  Nipomi,  where  two  roads  ascend,  and  where  a  stake  was 
driven  as  a  boundary." 

The  different  objects  here  stated  have  all  been  identified.  The 
position  of  the  top  of  the  Lomas  de  la  Larga  is  admitted  to  be  at  a  live 
oak  marked  on  the  survey  ;  the  laguna  lies  where  it  always  did  ;  and 
the  point  where  the  stake  mentioned  was  driven  has  been  shown. 
The  line  thus  given  is  the  one  laid  down  in  the  new  survey  of  the 
Gufidalupe  rancho  upon  which  the  patent  of  1870  was  issued. 
AVe  are  satisfied  that  it  is  the  true  line.  It  would  serve  no  useful 
purpose  to  go  minutely  into  an  examination  of  the  evidence  pre- 
sented against  this  view.  It  is  sufficient  to  observe  that  it  has 
not  created  any  serious  doubt  in  our  mind  as  to  the  correctness 
of  this  line.  This  conclusion  disposes  of  the  question  of  conflict 
of  boundaries. 

It  is  admitted  that  the  defendants,  except  such  as  disclaimed, 
were  in  the  possession  of  the  premises  in  controversy  at  the  com- 
mencement of  the  action ;  but  there  is  no  evidence  of  their  pos- 
session at  any  previous  period.  There  is,  therefore,  no  basis  laid 
for  the  recovery  of  any  other  than  mere  nominal  damages  for  the 
alleged  previous  possession ;  and  none,  accordingly,  will  be 
awarded. 

The  plaintiff  niust  have  judgment  for  the  possession  of  that 
portion  of  the  demanded  premise-!  which  is  covered  by  the  patent 
of  1870,  with  one  dollar  damages. 

Counsel  for  the  plaintiff  will,  within  ten  days,  prepare  special 
findings  in  the  ease,  and  submit  them  to  the  court  for  settlement, 
upon  notice  to  the  counsel  of  the  defendants  ;  otherwise,  a  general 
finding  will  be  filed. 


Henky  Miller  v.  George  W.  Ellis  and  Ezekiel  Tripp. 

Supreme  Court  of  California.— October  Term,  1875.— 51  California,  73. 

Delivery  of   United  States  patent  for  land.— DeViYery   of  a  patent  issued 
under  the  provisions  of  the  act  of  Congress  of  March  3,  1851,  for 


Miller  v.  Kllis.  633 

settlement  of  private  land  c  aims  in  California,   is  not  essential  to 
its  taking  elVect  as  a  conveyance. 
When  patent  takes  rffect—Poicer  of  State.— \  t^tate  has  no  authority  to 
provide  by  statute  when  iiatonts  for  land  issued  by  the  I'nit^d  States 
for  Mexican  grants  shall  take  eliect. 


Appkal  from  the  District  Court,  Twelltli  .ludicial  District,  City 
and  County  of  San  Francisco. 

Ejectment  to  recover  a  portion  of  the  rancho  Los  Animas,  in 
the  county  of  Santa  Clara.  The  court  rendered  judgment  against 
the  defendants. 

The  defendant,  Tripp,  appealed. 

The  other  facts  are  stated  in  the  opinion. 

Campbell,  Fox  ^  Cumpbell  for  ai)pellant. 

Houghton  &■  Ke.ynolds  for  the  respondent. 

By  the  court,  Rhodes,  J. : 

The  plaintiff,  in  proof  of  his  alleged  title,  introduced  in  evi- 
dence a  copy  of  a  patent  issued  by  the  United  States  to  the  widow 
and  heirs  of  Jose  Maria  Sanchez,  under  the  act  of  Congress  of 
March  3,  1851,  entitled  '•  An  act  to  ascertain  and  settle  private 
land  claims  in  the  State  of  California."  It  was  in  the  usual  form 
of  patents  issued  under  that  act.  It  was  proven  by  the  surveyor 
general  for  the  State  of  California,  that  he  had  received  tlie  pat- 
ent from  the  Commissioner  of  tlie  General  Land  Office  by  mail ; 
that  he  had  not  delivered  it  to  tlie  grantees  ;  and  that  he  had  been 
directed  by  the  commissioner  to  withhold  the  deliver}^  until 
furtlier  orders  from  the  commissioner.  The  defendant,  Tripp, 
objected  to  the  admission  in  evidence  of  a  c'opy  of  the  patent,  on 
several  grounds,  only  one  of  wiiich,  however,  requires  any  con- 
sideration ;  which  is,  that  the  patent  not  having  been  delivered, 
did  not  take  effect  as  a  conveyance  of  the  title.  No  authority  is 
cited  by  tlie  defendant  in  support  of  the  objection,  but  he  refers 
to  the  Civil  Code,  sec.  1054,  as  decisive  of  the  question.  That 
section  is  as  follows  :  "  A  grant  takes  effect  so  as  to  vest  the 
interest  intended  to  be  transferred  only  upon  the  deliverj^  by  the 
grantor."  Conceding  that  this  section  declares  the  rule  in  case 
of  conveyances  made  under  the  laws  of  this  State — excepting,  of 
course,  legislative  grants,  and.  perhaps,  some  otiiers — it  is  mani- 
fest tliat  it  can  have  no  application  to  grants  made  by  or  under 
the  authority  of  the  United   States,   for  the  State  has  not   com- 


634  Moore  v.  Robbins. 

petent  authority  to  provide  the  manner  in  vviiich  such  grants  shall 
take  effect. 

It  was  held  in  Donnerw  Palmer  {'Al  Cal.,  500),  in  considering 
the  effect  of  the  non-delivery  of  an  alcalde's  grant,  that  the  doc- 
trine of  delivery,  as  applied  to  private  conveyances,  has  no  appli- 
cation to  grants  made  V)y  the  government,  either  under  the  Mexi- 
can system  or  our  own.  In  Chipley  v.  Farris  (45  Cal.,  53'.)),  a 
patent  had  been  issued  in  pursuance  of  the  act  of  Congress  of 
March  3,  1851.  but  the  grantees  under  whom  tiie  plaintiff  claimed 
title,  refused  to  receive  or  accept  it.  It  was  held  by  the  court 
that  the  patent  was  one  of  the  steps  in  the  proceedings  under  the 
act  of  March  3,  1851  ;  that  the  claimant  in  those  proceedings  was 
as  powerless  to  prevent  the  issuing  of  a  patent  as  the  rendition 
of  a  decree  of  confirmation,  where  the  proceedings  have  not  been 
dismissed  ;  and  that  the  assent  of  the  claimant  to  its  issue  was 
no  more  essential  than  to  any  other  step  in  the  proceeding.  We 
have  seen  no  reason  to  doubt  the  correctness  of  the  principle 
there  announced.  It  necessarily  results,  therefore,  that  delivery 
is  not  essential  to  the  taking  eflect  of  a  patent  issued  under  the 
provisions  of  the  act  of  Congi-ess  of  March  3,  1851.  (See,  also, 
Lp  Roy  V.  Clayton,  2  Sawyer,  493),  which  is  directly  in  point ; 
Lott  V.  Proudlwmme.,  3  Rob.  La.,  293  :  Lavergne's  Heirs  v.  El- 
kin's  Heirs,  17  La.,  226.) 

Judgwent  and  order  affirmed. 

Mr.  Chief  Ji  stick  Wallace,  being  disqualified,  did  not  sit  in 
this  case. 

Mr..  Justice  McKinstky  did  not  express  an  opinion. 


Mooke  v.  Robbins. 
October  Term.  1877.— 6  Otto.  580.  ^ 

A  patent  for  public  land  when  issued  by  the  land  department,  acting 
within  the  .scope  of  its  authority,  and  delivered  to  and  accepted  by 
th  grantee,  passes  the  legal  title  to  the  land.  All  control  of  the 
executive  department  of  the  government  over  the  title  thereafter 
ceases. 

If  there  be  any  lawful  reason  why  the  patent  should  be  canceled  or 
rescinded,  the  appropriate  remedy  is  by  a  bill  in  chancery,  brought 
by  the  United  States;  but,  no  executive  oflicer  is  authorized  to 
reconsider  the  facts  on  which  it  was  issued,  and  to  recall  or  rescind 
it,  or  to  issue  one  to  another  partj'^  for  the  same  tract. 


Moore  v.  Robbins.  635 

3.  But  when  fraud  or  mistake  or  misconstruction  of  the  law  of  tlie  case 

exists,  the  United  States  or  any  contesting  claimant  for  the  land, 
may  have  relief  in  a  comt  of  equity. 

4.  Under  sect.  14  of  the  act  of  1S41,  ">  Stat.,  4.*)7.  and  the  act  of  March  3, 

IS.18,  10  id.,  '2-14,  no  pre-emption  claim  was  of  any  avail  against  a 
purchaser  of  the  land,  at  the  public  .sales  ordered  by  the  proclama- 
tion of  the  President,  unless,  before  they  commenced,  the  claimant 
liad  proved  up  his  settlement  and  paid  for  the  land, 
o.  The  decision  of  the  Secretary  of  the  Interior,  against  a  purchaser  at 
the  public  sales,  in  favor  of  a  pre-emption  claimant  who  had  failed 
to  make  the  required  proof  and  payment,  was  erroneous,  as  a  mis- 
conception of  the  law,  and  the  etpiitable  title  should  be  decreed  to 
belong  to  the  purchaser. 

Ekuou  to  the  Supreme  Court  of  the  State  of  Illinois. 
Tlie  facts  are  stateil  in  the  opinion  of  the  court. 
Mr.  Phillip  Phillips  for  the  plaintiff  in  error. 
Mr.  E.  E.  Williams  contra. 

Mk.  Justice  Miller  delivered  the  opinion  of  the  court. 

This  case  is  brought  before  us  by  a  writ  of  error  to  the  Supreme 
Court  of  the  State  of  Illinois. 

In  its  inception  it  was  a  bill  in  the  circuit  court  for  De  Witt 
county  to  foreclose  a  mortgage  given  bj'  Thomas  I.  Bunu  to  his 
brother  Lewis  Bunn,  on  the  south  half  of  the  southeast  quarter, 
and  the  south  half  of  the  southwest  quarter  of  section  27,  town- 
ship 19,  range  3  east,  in  said  county.  In  the  progress  of  the  case 
the  bill  was  amended  so  as  to  allege  that  C.  H.  Moore  and  David 
Davis  set  up  some  claim  to  the  land,  and  they  were  made  defend- 
ants, and  ansv/ered. 

Moore  said  that  he  was  the  riglitful  owner  of  forty  acres  of  the 
land  mentioned  in  the  bill  and  mortgage,  to  wit.  the  soutliwest 
quarter  of  the  southwest  quarter  of  said  section,  and  had  tiie 
patent  of  the  United  States  giving  him  the  title  to  it. 

Davis  answered  that  he  was  the  rightful  owner  of  the  southeast 
quarter  of  said  southwest  quarter  of  section  27.  He  alleges  that 
John  P.  Mitchell  bought  the  land  at  tlie  public  sale  of  lands 
ordered  by  the  President  for  that  district  and  paid  for  it.  and  had 
the  receipt  of  the  register  and  receiver,  and  that  it  was  afterwards 
sold  under  a  valid  judgment  and  execution  against  Mitchell,  and 
the  title  of  said  Mitcliell  came  by  due  course  of  conveyance  to 
him,  said  Davis. 

It  will  thus  be  seen  tliat.  while  Moore  and  Davis  each  assert 


636  MooKE  r.  Koijbins. 

title  to  a  (iirterent  forty  acres  of  the  land  covered  b}'  Buni)"s  mort- 
gage to  his  brother,  neitlier  of  them  claim  under  or  in  i)rivity 
with  Bnnn's  title,  l)ut  adversely  to  it. 

But  as  both  parties  assert  a  right  to  the  land  under  i)urchases 
from  the  United  States,  and  since  their  rights  depend  upon  the 
laws  of  the  United  vStates  concerning  the  sale  of  its  public  lands, 
there  is  a  question  of  which  this  court  must  take  cognizance. 

Ah  regards  Moore's  branc^li  of  the  case  it  seems  to  us  free  frf)m 
ditliculty. 

The  evidence  shows  that  the  forty  acres  which  he  claims  was 
struck  off  to  him  at  a  cent  or  two  over  $2.50  per  acre,  at  a  pub- 
lic land  sale  l>y  the  officers  of  the  land  district  at  Danville,  Ill.» 
November  15.  1855  ;  that  his  right  to  it  was  contested  before  the 
register  and  receiver  by  Bunn,  who  set  up  a  prior  pre-emption 
right.  Those  officers  decided  in  the  favor  of  Bunn  ;  whereupon 
Moore  appealed  to  the  Commissioner  of  the  General  Land  Office, 
who  reversed  the  decision  of  the  register  and  receiver,  and  on  this 
decision  a  patent  for  the  land  was  issued  to  Moore,  who  has  it 
now  in  his  possession. 

Some  time  after  this  patent  was  delivered  to  Moore,  Bunn 
appealed  from  the  decision  of  the  commissioner  to  the  Secretary 
of  the  Interior,  who  reversed  the  commissioners  decision  and 
confirmed  that  of  the  register  and  receiver,  and  directed  the  patent 
to  Moore  to  be  recalled,  and  one  to  issue  to  Bunn.  r>ut  Moore 
refused  to  return  his  patent  and  the  Land  Department  did  not 
venture  to  issue  another  for  the  same  land  ;  and  so  there  is  no 
question  but  that  Moore  is  vested  now  with  the  legal  title  to  the 
land,  and  was  long  before  this  suit  was  commenced.  Nor  is  there 
in  looking  at  the  testimony  taken  before  the  register  and  receiver 
and  that  taken  in  the  present  suit,  any  just  foundation  for  Bnnn's 
pre-emption  claim.  We  will  consider  this  point  more  hilly  when 
we  come  to  the  Davis  branch  of  the  case. 

Taking  this  for  granted  it  follows  that  Moore,  who  has  the 
legal  title,  is  in  a  suit  of  chancery  decreed  to  give  it  up  in  favor 
one  who  has  neither  a  legal  n'or  an  equitable  title  to  the  land. 

The  Supreme  Court  of  Illinois,  before  whom  it  was  not  pre- 
tended that  Bunn  had  proved  his  right  to  a  pre-emption,  in  their 
opinion  in  this  case  place  the  decree  by  which  they  held  Bunn's 
title  paramount  to  that  of  Moore,  on  the  ground  that  to  the  officers 
of  the  land  department,  including  the  Secretary  of  the  Interior, 
the  acts  of  Congress  had  confided  the  determination  of  this  class 


MoORK  C.    1\(M!IJINS.  637 

of  cases,  and  the  (leeision  of  the  secretarj-  in  favor  of  Hunn  being 
the  latest  and  final  authoritative  decision  of  the  tribunal  having 
jurisdiction  of  the  contest,  the  courts  are  bound  by  it.  and  must 
give  eifect  to  it.     {Robhins  v.  Buim,  fA  111..  48.) 

Without  now  inquiring  into  the  nature  and  extent  of  the  doc- 
trine referred  to  by  the  Illinois  court,  it  is  very  clear  to  us  that  it 
has  no  application  to  IMoore's  case. 

While  conceding  for  the  present,  to  tlie  fullest  extent,  that 
when  there  is  a  question  of  contested  right  between  private  par- 
ties to  receive  from  the  United  .States  a  patent  for  any  part  of 
the  public  land,  it  belongs  to  the  head  of  the  land  department  to 
decide  that  question,  it  is  equally  clear  that  when  the  patent  has 
been  awarded  to  one  of  the  contestants,  and  has  been  issued, 
delivered,  and  accepted,  all  right  to  control  the  title  or  to  decide 
on  the  right  to  the  title  has  passed  from  the  land  office.  Not 
only  has  it  passed  from  the  land  office,  but  it  has  passed  from  the 
Executive  Department  of  the  government.  A  moment's  consid- 
eration will  show  that  this  must,  in  the  nature  of  things,  be  so. 
We  are  speaking  now  of  a  case  in  whijii  the  officers  of  the  depart- 
ment have  acted  within  the  scope  of  tlieir  authority.  The  offices 
of  register  and  receiver  and  commissioner  are  created  mainly  for 
the  purpose  of  supervising  the  sales  of  the  public  lands,  and  it  is 
a  part  of  their  daily  business  to  decide  when  a  party  has  by  pur- 
chase, by  pre-emption,  or  by  any  other  recognized  mode,  estab- 
lished a  right  to  receive  from  the  government  a  title  to  any  part 
of  the  public  domain.  This  decision  is  subject  to  an  appeal  to  the 
secretary,  if  taken  in  time.  But  if  no  such  appeal  be  taken,  and  the 
patent  issued  under  the  seal  of  the  United  States,  and  signed  by 
the  President,  is  delivered  to  and  accepted  by  the  party,  the  title 
of  the  government  passes  with  this  delivery.  With  the  title  passes 
away  all  authority  or  control  of  the  executive  department  over 
the  land  and  over  the  title  which  it  has  conveyed.  It  would  be 
as  reasonable  to  hold  that  any  private  owner  of  land  who  has  con- 
veyed it  to  another  can.  of  his  own  volition,  recall,  cancel,  or 
annul  the  instrument  which  he  has  made  and  delivered.  If  fraud, 
mistake,  error,  or  wrong  has  been  done,  the  courts  of  justice  pre- 
sent the  only  remedy.  These  courts  are  as  open  to  the  United 
States  to  sue  for  the  cancellation  of  the  deed  or  reconveyance  of 
the  land  as  to  individuals,  and  if  the  government  is  the  party 
injured  this  is  the  proper  course. 

'•A  patent"   says  the  court  in    UnitcrJ  SfatPfi  v.  Stone.  (2  Wall., 


638  Moore  v.  Robbins. 

525),  "  is  the  highest  evidence  of  title,  and  is  conclusive  as  agaii'ist 
the  government  and  all  claiming  under  junior  patents  or  titles, 
untif  it  is  set  aside  or  annulled  by  some  judicial  tribunal.  In 
Enirlaiid,  this  was  originally  done  by  scire  facias ;  but  a  bill  in 
chancery  is  found  a  more  convenient  remedy."  See  also,  Hughes 
v.  United  States,  4  Wall.,  232  ;  S.  C  11  Mow.,  552. 

If  an  individual  setting  up  claim  to  the  land  has  been  injured, 
he  may,  under  circumstances  presently  to  be  considered,  have  his 
remedy  against  the  party  who  has  wrongfully  obtained  the  title 
which  should  have  gone  to  him. 

But  in  all  this  there  is  no  place  for  the  further  control  of  the  • 
executive  department  over  the  title,  The  functions  of  that  depart- 
ment necessarily  cease  when  the  title  has  passed  from  the  govern- 
ment. And  the  title  does  so  pass  in  every  instance  where,  under 
the  decisions  of  the  officers  having  authority  in  the  matter,  a  con- 
veyance, oenerally  called  a  patent,  has  been  signed  by  the  President 
and  sealed,  and  delivered  to  and  accepted  by  the  grantee.  It  is  a 
matter  of  course  that,  after  this  is  done,  neither  the  secretary  nor 
any  other  executive  officer  can  entertain  an  appeal.  He  is  abso- 
lutley  without  authority.  If  this  were  not  so,  the  titles  derived 
from  the  United.,*States,  instead  of  being  the  safe  and  assured  evi- 
dence of  ownership  which  they  are  generally  supposed  to  be,  would 
be  always  subject  to  the  fluctuating,  and  in  many  cases  unreliable, 
action  of  the  land  office.  No  man  could  buy  of  the  grantee  with 
safety,  because  he  could  only  convey  subject  to  the  right  of  the 
officers  of  the  government  to  annul  his  title. 

If  such  a  power  exists,  when  does  it  cease?  There  is  no  statute 
of  limitations  against  the  governrareTit ;  and  if  this  right  to  recon- 
sider and  annul  a  patent  after  it  has  once  become  perfect  exists  in 
the  executive  department,  it  can  be  exercised  at  anytime,  however 
remote.  It  is  needless  to  pursue  the  subject  further.  The  exis- 
tence of  any  such  power  in  the  land  department  is  utterly  inconsis- 
tent with  the  universal  principle  on  which  the  right  of  private 
property  is  founded. 

The  order  of  the  Secretary  of  the  Interior,  therefore,  in  Moore's 
case,  was  made  without  authority,  and  is  utterly  void,  and  he  has 
a  title  perfect,  both  at  law  and  in  equity. 

The  question  presented  by  the  forty  acres  claimed  by  Davis  is 
a  very  different  one.  Here,  although  the  government  has  twice 
sold  the  land  to  different  persons  and  received  the  money,  it  has 
issued  no  patent  to  either,  and  the  legal  title  remains  in  the  United 


Moore  v.  Kobbins.  639 

States.  It  is  not  denied,  however,  that  to  one  or  the  other  of  the 
parties  now  before  tlie  court,  tiiis  title  equitably  belongs  ;  and  it 
is  the  purpose  of  the  present  s.iit  to  decide  that  question. 

The  evidence  shows  that  on  the  same  da^^  that  INIoore  bought 
at  the  public  land  sale  the  forty  acres  we  have  just  been  consider- 
ing, Mitchell  bought  in  like  manner  the  forty  acres  now  claimed 
by  Davis;  to  wit,  Nov.  15,  1855.  He  paid  the  sum  at  which  it 
was  struck  off  to  him  at  public  outcry,  and  received  tlie  usual 
certificate  of  purchase  from  the  register  and  receiver.  On  the 
twentieth  day  of  February,  1856,  more  than  three  months  after 
Mitchell's  purchase,  Thomas  I.  Bunn  appeared  before  the  same 
register  and  receiver,  and  asserted  a  right  by  reason  of  a  pre-emp- 
tion commenced  on  the  eighth  day  of  November,  1855,  to  pay  for 
the  south  half  of  the  southwest  quarter  and  the  south  half  of  the 
southeast  quarter  of  section  27,  which  includes  both  the  land  of 
Moore  and  Davis  in  controversy  in  this  suit,  and  to  receive  their 
certificates  of  purchase.  They  accepted  his  money  and  granted 
his  certificate.  A  contest  between  Bnnn  on  the  one  side,  and 
Moore  and  Mitchell  on  the  other,  as  to  whether  Bunn  had  made 
the  necessary  settlement,  was  decided  by  those  ofiScers  in  favor  of 
Bunn  ;  and  on  appeal,' as  we  have  already  shown,  to  the  commis- 
sioner, this  was  reversed,  and  finally  tlie  Secretary  of  the  Interior, 
reversing  the  commissioner,  decided  in  favor  of  Bunn. 

But  no  patent  was  issued  to  Mitchell  after  the  commissioner's 
decision,  as  there  was  to  Moore  ;  and  the  secretary,  thereJbre,  had 
the  authority  undoubtedly  to  decide  finally  for  the  land  depart- 
ment who  was  entitled  to  the  patent ;  and,  though  no  patent  has 
been  issued,  that  decision  remains  the  authoritative  judgment  of 
the  department  as  to  who  has  the  equitable  right  to  the  land. 

The  Supreme  Court  of  Illinois,  in  their  opinion  in  this  case, 
come  to  the  conclusion  that  this  final  decision  of  the  secretary  is 
not  only  conclusive  on  the  department,  but  that  it  also  excludes 
all  inquiry  by  courts  of  justice  into  the  right  of  the  matter  between 
the  parties. 

The  whole  question,  however,  has  been  since  that  time  very 
fully  reviewed  and  considered  by  this  court  in  Johnson  v.  Toicsley, 
13  Wall.,  72.  The  doctrine  announced  in  that  case  and  repeated 
in  several  cases  since  is  this  : 

That  the  decision  of  the  officers  of  the  land  department,  made 
within  the  scope  of  their  authority  on  questions  of  this  kind,  is 
in  general  conclusive  everywhere,  except  when  reconsidered  by 


\ 


640  Moore  v.  Robbins. 

wa}-  of  .appeal  within  that  departnent ;  and  tliat  as  to  the  facts  on 
whirh  their  decision  is  based,  in  the  absence  of  frand  or  mistake, 
that  decision  is  conchisive  even  in  courts  of  justice,  when  the  title 
afterwards  comes  in  question;  but  that  in  this  class  of  cases,  as 
in  all  others,  there  exists  in  the  courts  of  ecpiity  the  jurisdiction 
to  correct  mistakes,  to  relieve  against  frauds  and  impositions,  and 
in  cases  where  it  is  clear  that  those  officers  liave,  by  a  mistake  in 
the  law,  given  to  one  man  the  land  which  on  the  undisputed  facts 
belonged  to  another,  to  give  appropriate  relief. 

In  tlie  recent  case  of  Shepley  et  <d.  v.  Coautn.  at  (d.  (Ul  U.  8., 
840),  the  doctrine  is  thus  aptly  stated  by  Mr.  Justice  Field  : 

"The  officers  of  the  land  department  are  specially  designated 
by  law  to  receive,  consider,  and  pass  upon  proofs  presented  with 
respect  to  settlements  upon  the  public  lands,  with  a  view  to  secure 
rights  of  pre-emption.  If  they  err  in  the  construction  of  the  law 
applicable  to  any  case,  or  if  fraud  is  practiced  upon  them,  or 
they  themselves  are  chargeable  with  fraudulent  practices,  their 
rulings  may  be  reviewed  and  annulled  by  the  courts,  when  a  con- 
troversy arises  between  private  parties,  founded  upon  their  deci- 
sions :  but,  for  mere  errors  of  judgment,  upon  the  weight  of 
evidence  in  a  contested  case  before  them,  the  only  remedy  is  by 
appeal  from  one  officer  to  another  of  tlie  department." 

Applying  to  the  case  before  us  these  principles,  which  are  iso 
well  established,  and  so  well  understood  in  this  court  as  to  need 
BO  further  argument,  we  are  of  opinion,  if  we  take  as  proved  the 
sufficiency  of  the  occupation  and  improvement  of  Bunn,  as  of  the 
date  which  he  alleged,  his  claim  is  fatally  defective  in  another 
respect,  in  which  the  officers  of  the  land  department  were  mis- 
taken as  to  the  law  which  governed  the  riglits  of  the  i)arties.  or 
entirely  overlooked  it. 

In  tlie  recent  case  of  Atlierton  v.  Fowler,  siipni.  we  had 
occasion  to  review  the  general  policy  and  course  of  the  gov- 
ernment in  disposing  of  the  public  lands,  and  we  stated  that  it 
had  formerly  been,  if  it  is  not  now,  a  rule  of  primary  importance 
to  secure  to  the  government  the  highest  ()rice  which  the  land 
would  bring,  by  ottering  it  publicly  at  competitive  sales,  before  a 
right  to  any  part  of  it  could  be  established  by  private  sale,  or  by 
pre-emption.  In  the  enforcement  of  this  policy,  the  act  of  Sep- 
tember 4,  1841,  which,  for  the  first  time,  established  the  general 
principle  of  pre-emption,  and  which  has  remained  the  basis  of 
that  right  to  this  day,  while   it  allowed  persons  to  make  settle- 


Moore  c.  Robbins.  641 

ments  on  the  pu])lio  lands  as  soon  as  the  snrve^^s  were  completed 
and  filed  in  the  local  olHces.  atiixed  to  snch  a  settlement  two  con- 
ditions as  affectins:  the  riirht  to  a  pre-enii)tion.  One  of  these  was 
that  the  settler  should  uive  notice  to  the  land  oflice  oC  the  district, 
within  thirty  days  after  settlement,  of  his  intention  to  exercise 
the  rii^ht  of  pre-emption,  and  tlie  other  we  will  o;ive  in  (he  lati- 
gnave  of  tiie  fourteenth  section  of  that  act  : 

'*  'I'his  act  shall  not  delay  the  sale  of  any  of  tlic  public  huids  of  the 
United  States,  beyond  the  time  which  has  been  or  may  be  appointed  by 
the  proclamation  of  the  President,  nor  shall  any  of  the  provisions  of  this 
act  be  available  to  any  person,  who  shall  fail  to  make  the  proof  of  [and] 
payment,  and  file  the  affidavit  required  before  the  commoneement  of  the 
sale  aforesaid.'"     (5  Stat.,  457.) 

There  can  be  no  misconstruction  of  this  |)rovision,  nor  any 
doubt  that  it  was  the  intention  of  Coniiress  that  none  of  the  liberal 
provisions  of  that  set  sliould  stand  in  the  way  of  a  sale  at  auction 
of  any  of  the  pul)lic  lands  of  a  given  district  where  the  purchase 
had  not  been  completed  by  the  payment  of  the  price  before  the 
connnencement  of  the  sales  ordered  by  the  President's  proclama- 
tion. We  do  not  decide,  because  we  have  not  found  it  necessary  to 
do  so,  whether  this  provision  is  applicable  under  all  the  pre-emp- 
tion laws  passed  since  the  act  of  1841.  though  part  of  it  is  found  in 
the  Revised  Statutes,  sect.  2.282,  as  part  of  the  existing  law.  But 
we  have  so  far  examined  all  tliose  laws  enacted  prior  to  Novem- 
ber, 1855,  the  date  of  Mitchell's  purchase,  as  to  feel  sure  it  was 
in  full  operation  at  that  time. 

The  act  of  March  3,  1853,  extending  the  right  of  pre-emption 
to  the  alternate  sections,  which  the  government  policy  reserved 
in  its  numerous  grants  to  railroads  and  other  works  of  internal 
improvement,  required  the  pre-emptor  to  pay  for  them  at  §2.50 
per  acre  before  they  should  be  offered  for  sale  at  public  auction. 
(10  Stat..  244.) 

This  was  only  two  years  and  a  half  before  these  lands  were 
sold  to  Mitchell,  and  they  were  parts  of  an  alternate  section 
reserved  in  a  railroad  grant.  That  statute,  in  its  terms,  was 
limited  to  persons,  who  had  already  settled  on  such  alternate 
sections,  and  it  may  be  doubted  whether  any  right  of  pre-emption 
by  a  settlement  made  afterwards  existed  under  the  law.  But  it 
is  unnecessary  to  decide  that  i)oinT,  as  it  is  beyond  dispute  that 
it  retpiired  in  any  event  that  the  money  siionld  be  i)aid  before  the 
lantl  was  offered  for  sale  at  public  auction. 

41 


642  Moore  v.  Robbins. 

The  record  of  this  case  shows  that,  while  Bunn's  pre-emption 
claim  comes  directly  within  the  provision  of  both  statntes,  they 
were  utterly  disregarded  in  tlie  decision  of  the  Secretary  of  the 
Interior,  on  which  alone  liis  case  has  any  foundation. 

We  have  no  evidence  in  this  record  at  what  time  the  President's 
proclamation  was  issued,  or  when  the  sales  under  it  began  at 
which  Mitchell  purchased.  These  proclamations  are  not  pub- 
lished in  the  statutes  as  public  laws,  and  tins  one  is  not  mentioned 
in  the  record.  But  we  know  that  the  public  lands  are  never 
offered  at  public  auction  until  after  a  proclamation  fixing  the  day 
when  and  the  place  where  the  sales  begin.  The  record  shows  tliat 
both  Moore  and  Mitchell  bought  and  paid  for  the  respective 
forty-acre  pieces  now  in  contest  at  public  auction.  That  they  were 
struck  off  to  them  a  few  cents  in  price  above  the  minimum  of 
$2.50,  below  which  these  alternate  sections  could  not  be  sold,  and 
that  this  was  on  the  fifteenth  day  of  November,  1855.  These 
public  sales  were  going  on  then  on  that  day.  and  how  much  longer 
is  not  known,  but  it  might  have  been  a  week  or  two  weeks,  as 
these  sales  often  continue  open  longer  than  that. 

Bunn  states  in  his  application,  made  three  months  after  this, 
that  his  settlement  began  on  the  8th  day  of  November,  1855.  It 
is  not  apparent  from  this  record  that  he  ever  gave  the  notice  of 
his  intention  to  pre-empt  the  land,  by  filing  what  is  called  a 
declaration  of  that  intention  in  the  land  office.  There  is  a  copy 
of  such  declaration  in  the  record  accompanying  the  affidavit  of 
settlement,  cultivation,  and  qualification  required  of  a  pre-emptor, 
which  last  paper  was  made  and  sworn  to  February  20,  1856,  when 
he  proved  up  his  claim  and  paid  for  and  received  his  certificate. 
There  is  nothing  to  show  when  the  declaration  of  intention  was 
filed  in  the  office. 

Waiving  this,  however,  which  is  a  little  obscure  in  the  record, 
it  is  very  clear  that  Bunn  "failed  to  make  proof  of  [and]  payment, 
and  failed  to  file  the  affidavit  of  settlement  required,  before  the 
comndencement  of  the  sale"  at  which  Mitchell  bought.  The 
statute  declares  that  none  of  the  provisions  of  the  act  shall  be 
available  to  any  person  who  fails  to  do  this.  The  affidavit  and 
payment  of  Bunn  were  made  three  months  after  the  land  sales 
had  commenced,  and  after  these  lands  had  been  sold. 

The  section  also  declares  that  the  act  shall  not  delay  the  sale 
of  any  public  land  beyond  the  time  which  has  been  or  may  be 
appointed   by  the    proclamation  of  the   President,      To   refuse 


xMoORE   v.  ROBBINS.  643 

INIitelieirs  hid  on  account  of  aii}'  supposed  settlement,  even  if  it 
had  been  brought  to  tlie  attention  of  the  officers,  would  have  been 
to  delay  the  sale  beyond  the  time  appointed,  and  would,  therefore 
have  J)een   in  violation   of  the  very  statute  under  which    Hunn 
asserts  his  riglit. 

Whatever  Hunn  may  have  done  on  the  8tli  of  November,  and 
up  to  the  lotli  of  that  montli,  in  the  way  of  occupation,  settlement, 
improvement,  and  even  notice,  could  not  withdraw  the  land  from 
sale  at  public  aution,  unless  he  had  also  paid  or  offered  to  pay 
the  \ir\ve  before  the  sales  commenced. 

It  seems  quite  probable  that  such  attempt  at  settlement  as  he 
did  make  was  made  while  the  land  sales  were  going  on.  or  a  few 
days  before  they  began,  with  the  purpose  of  preventing  the  sale, 
in  ignorance  of  the  provision  of  the  statute  which  made  such 
attempt  ineffectual. 

At  all  events,  we  are  entirely  satisfied  that  the  lands  in  con- 
troversy were  subject  to  sale  at  public  auction  at  the  time  Moore 
and  JNIitchell  bid  for  and  bought  them  :  that  tlie  sale  so  made  was 
by  law  a  valid  one.  vesting  in  them  the  equitable  title,  with  right 
to  receive  tlie  patents  ;  and  that  the  subsequent  proceedings  of 
Bunn  to  enter  the  land  as  a  pre-emptor  were  unlawful  and  void. 

It  was  the  duty  of  tlie  court  in  Illinois,  sitting  as  a  court  of 
equity,  to  have  declared  tliat  the  mortgage  made  by  Bunn,  so  far 
as  these  lands  are  concerned,  created  no  lien  on  them,  because  he 
had  no  right,  legal  or  equitable,  to  them. 

The  decree  of  the  Supreme  Court  of  that  State  must  be  reversed, 
and  the  cause  remanded  to  that  court  for  further  proceedings  in 
accordance  with  this  opinion  ;    and  it  is  So  ordered. 

Note.— If  the  first  entry  is  valid,  a  second  patent  is  inoperative.  It 
conveys  nothing.     Patterson  v.  Tainm^  3  Sawyer,  1G4. 

Where  two  patents  have  issued  to  different  persons  for  tlie  same  land, 
the  one  issued  on  the  first  entry  or  legal  appropriation  of  the  land,  will 
prevail  in  an  action  at  law.  Stephens  v.  Westwood,  25  Ala.,  71  (> ;  Smith  v. 
Athente,  M  Cal.,  506  ;  Garner  v.  IVillit,  IS  111.,  455.  1  n  Wisconsin  it  was 
held,  that  the  earliest  patent  was  conclusive  in  ejectment.  Parkinson  v. 
Bracken,  I   Finn.,  174. 


644  WiRTH  V.  Branson. 

.Iacou  WiuTii  r.  Calvfn  Bjjanson   axd  Nathan  Lindsey. 
(No.  G9,  October  Term.  1S78,  will  be  reported  in  7  Otto.) 

1.  Upon  the  location  of  a  land  warrant,  the  land  located  becomes  segre- 

gated from  the  public  domain,  and  whilst  the  location  was  in  force, 
(uncanceled),  no  other  disposition  of  the  land  could  lawfully  be 
made  bj'^  the  government. 

2.  A  subsequent  entry  and  patent  held  to  be  void  in  an  action  of  eject- 

ment. 

3.  The  doctrine  of  estoppel  not  applicable  to  the  facts  in  this  case. 

In  ERitoK  to  the  Circuit  Court  of  the  llnited  States  for  tlie 
Soutliern  District  of  Illinois. 

Mu.  Jr.sTic'E  Bradley  delivered  the  opinion  of  the  court. 

This  case  was  before  us  in  December  term.  1872.  It  comes 
before  us  now  on  a  ditferent  state  of  facts  :  the  original  patent  to 
Gile-?  Kgerton.  which  was  not  produced  on  the  former  trial,  beina: 
produced  on  the  trial  which  has  taken  place  since  our  decision, 
and  purports  to  be  for  the  southeast  quarter  of  section  18,  instead 
of  the  Horthecist  quarter  in  controversy.  The  question  is,  whether 
this  fact  changes  the  rights  of  the  parties.  A  statement  of  the 
case,  however,  is  necessary,  in  order  to  show  the  precise  questions 
whicli  are  now  raised' by  the  record. 

The  action  is  ejectment  brought  by  the  |)laintiff  in  error  to 
recover  a  quarter-section  of  land  in  Fulton  county,  Illinois, 
namely,  the  northeast  quarter  of  sei^tion  18.  township  4  north, 
range  "2  east,  from  the  fourth  principal  meridian.  On  the  trial, 
the  plaintiff  produced  a  regular  patent  for  the  lot.  issued  by  the 
United  States  to  one  Edward  F.  Leonard,  dated  February  2()th. 
1868.  and  a  conveyance  from  Leonard  to  himself. 

The  defendants  then  offered  in  evidence  a  duly  exemplified 
copy  of  a  military  land  warrant.  No.  13,598,  bearing  date  Decem- 
ber 3d.  1817,  issued  to  one  Giles  Egerton,  a  sergeant  in  the  26tli 
regiment  United  States  infantry,  and  purporting  to  be  in  pursu- 
ance of  the  second  section  of  the  act  of  May  6th.  1812,  and  certi- 
fying that  said  Egerton  was  entitled  to  160  acres  of  land  to  be 
located  agreeably  to  said  act  on  any  unlocated  parts  of  the  six 
millions  of  acres  ai)propriated  for  that  purpose — it  being  con- 
ceded that  the  lot  in  question  is  part  of  said  military  reservation. 
They  then  proved,  by  an  exemplified  record  of  the  General  Land 
Office  at  Washington, -that  the  aforesaid  land  warrant  was  located 
according  to  law.   on   the    10th   day   of  January.    1818.  by  Giles 


WiRTH  V.  Branson.  645 

K<>:erton,  on  the   lot  in   qnestion.     Tlie   detVndfints   tlien  ojive  in 
evi<lenee  an  exemplified  copy  from  tlie   records  of  tlie  land  otlice. 
of  a  i)atent  from  the  United  States  to  Giles  Egerton,  dated  Janu- 
ary  10th,  1818,  reciting  that  he  had  deposited  the  said  land  war- 
rant. No.  13,598,  in  the  land  oftice,  and   oranting;  to   him  the  said 
lot.     On  the  maroin  of  this  certified  coj^y  of  the  patent  was  written 
a    memorandum,    without   date,  as  follows:     "This  patent  was 
issued  for  the  S.  E.  |  instead  of  the  N.  E.  |,  as  recorded  ;  sent  a 
certificate  of  that  fact  to  E.  B.   Clemson,   at   Lebanon.  Ills. :  see 
his  letter  of  19th  May.    1826."     The  plaintiflT  insisted  that  this 
memorandum  should  be  read  with  the  record  of  the  patent.     In 
accordance  with  our  decision  in  the  former  case  {Br((nson  \.  Wirth, 
16  AVall.,  43),  the  court  refused  to  allow  it  to  be  read.     The  defend- 
ants  then   offered    in    evidence  a   deed   from  Giles  Egerton  to 
Thomas  Hart,  dated  July  ■29th,  1819,  for  the  southeast  quarter  of 
section  18.  reciting  that  the  same  was  granted  to  said   Giles  in 
consideration  of  his  militarj^  services,  as  would  appear  by  a  pat- 
ent dated  January  10th,  1818.     The  defendants  then  gave  in  evi- 
dence an  exemplified  copy  of  a  patent  from  the  United  States  to 
one  James  Durney.  for  the  said  southeast  quarter  of  section   18, 
dated  January  7th,  1818  (three  days  prior  to  the  date  of  Eger- 
ton's  patent),  referring  to  land  warrant  No.  5,144  as  the  basis   of 
the  grant.     The  defendants  then  gave  in  evidence  a  tax  title  for 
the  lot  in  question,  being  a  deed  from  the  sheriff  of  Fulton  county, 
Illinois,  to   one   Timothy   Gridley.   dated  November   14th,   1843, 
under  a  judgment  of  June  term.  1840,  for  the  taxes   for  the  year 
1839  ;  and  also  several  mesne  conveyances  from  the  said  GHdley 
to  the  defendants  in  February,  1849  :  and  they  proved  that  they 
and  their  grantors  had  occupied,  cultivated,  and  had  full   and 
undisturbed  possession  of  the  land  ever  since  November,   1843, 
paying  the  taxes  thereon.     The  plaintiff  objected  to  the  reception 
of  this  evidence,  relating  to  the  tax  title  and  possession. 

In  rebuttal  of  this  defence,  the  plaintiff  gave  in  evidence  a  deed 
for  the  southeast  quarter  of  section  18,  from  Thomas  Hart  to 
Samuel  F.  Hunt,  dated  May  12th,  1824;  also  a  deed  from  Hunt 
to  one  Eli  B.  Clemson.  dated  April  7th,  1825  ;  and  from  Clemson 
to  one  John  Shaw,  dated  October  20th,  1829  ;  also  an  act  of  Con- 
gress, approved  March  3d,  1827,  entitled  "An  act  for  the  relief  of 
the  legal  representatives  of  Giles  Egerton,"  by  which  it  was 
enacted  that  the  legal  representatives  of  Giles  Egerton,  late  a 
sergeant,    etc.,   be  authorized  to  enter  with  the  register  of  the 


646  WiRTH  V.  Branson. 

pi^oper  land  office,  any  unappropriated  (luarter-section  of  land  in 
the  tract  reserved,  &c..  in  lieu  of  the  quarter  patented  to  said 
Giles  on  the  10th  of  January,  1H18,  which  had  been  previoush' 
patented  to  James  Durney.  The  plaintiff  further  proved  that 
John  Shaw,  assignee  of  Giles  Egerton,  on  the  6th  of  April,  1838, 
entered  another  quarter  section  in  pursuance  of  this  act.  The 
plaintifi'  then  gave  in  evidence  the  original  patent,  dated  January 
10th,  1818,  given  to  Giles  Egerton  for  the  southeast  quarter  of 
section  18,  purporting  to  be  based  on  the  warrant  in  his  favor, 
numbered  13,598.  All  this  rebutting  evidence  of  the  plaintiff 
was  objected  to  by  the  defendants,  but  received  by  the  court. 

Upon  this  evidence,  each  party  asked  the  court  for  instructions, 
and  the  instructions  given  were,  1st,  that  the  defendants  had 
proved  that  the  land  in  controversy  was  granted  by  the  United 
States  to  Giles  Egerton  on  the  10th  of  January,  1818.  and  that 
Egerton  had  conveyed  it  to  Thomas  Hart ;  which  constituted  an 
outstanding  title  that  defeated  the  })laintiff's  right  of  recovery  ; 
2d.  that  defendants  had  shown  that  on  the  10th  of  January.  1818, 
the  land  warrant  of  Giles  Egerton  was  duly  located  on  and  upon 
the  land  in  controversy,  which  location  was  not  sliown  to  be 
.  vacated  or  set  aside,  and  therefore  said  land  was  not  subject  to 
entry  by  or  grant  to  Leonard  in  1868  :  and  a  verdict  was  there- 
upon given  for  the  defendants.  To  these  instructions  the  plain- 
tiff excepted  ;  and  whether  tliey  were  correct  is  the  question  now 
before  the  court. 

If  either  of  these  instructions  was  correct  in  point  of  law.  the 
judgment  must  be  affirmed ;  for  each  was  based  upon  undisputed 
facts  ;  and  if  either  was  correct,  the  defendants  had  a  complete 
defense. 

We  are  satisfied  that  the  second  instruction,  at  least,  correctly 
expressed  the  law  of  the  case,  and  renders  the  production  of  the 
original  patent  to  Egerton  entirely  immaterial.  The  land  in 
question  was  shown  to  have  been  located  in  his  favor  in  due  form, 
under  a  regular  militar}^  land  warrant,  and  no  attempt  was  made 
to  show  that  this  location  was  ever  vacated  or  set  aside.  Whilst 
this  location  was  in  force  no  other  could  laM^fully  be  made  on  the 
same  land.  A  subsequent  location,  though  followed  by  a  patent, 
would  be  void.  Everything  was  done,  which  was  required  to  be 
done,  to  entitle  Egerton  to  a  patent  for  the  land.  Being  for  mili- 
tary  bount}^  no  price  was  payable  therefor.     The  land    became 


WiRTH  V.  Branson.  647 

segregated  from  the  public  domain  and  subject  to  private  owner- 
ship, and  all  the  incidents  and  liabilities  thereof. 

The  rule  is  well  settled  by  a  long  course  ofdecisions,  that  when 
pultlic  lands  have  been  surveyed  and  placed  in  the  market,  or 
otherwise  opened  to  private  acquisition,  a  person  who  complies 
with  all  the  requisites  necessary  to  entitle  him  to  a  patent  in  a 
particular  lot  or  tract,  is  to  be  regarded  as  the  equitable  owner 
thereof;  and  the  land  is  no  longer  open  to  location.  The  public 
faith  has  become  pledged  to  the  locator,  and  any  subsequent 
grant  of  the  same  land  to  another  ))arty  is  void,  unless  the  first 
location  l)e  vacated  and  set  aside. 

This  was  laid  down  as  a  principle  in  the  case  of  Lytlp  v.  The  State 
of  Jrhinsas  and  others,  9  How.,  314,  and  has  ever  since  been 
adhered  to.  (See  Stark  v.  Starr  and  others,  6  Wall.,  402.)  Sub- 
sequent cases  which  have  seemed  to  be  in  conflict  with  these, 
have  been  distinguished  from  them  bjr  the  fact  that  something 
remained  to  be  done  by  the  claimant  to  entitle  him  to  a  patent, 
such  as  the  payment  of  the  price,  the  payment  of  the  fees  of  sur- 
veying, or  the  like.  The  proper  distinctions  on  the  subject  are 
so  fully  stated  in  the  cases  of  Stark  v.  Starr  <§•  al.,  6  Wall.,  402  ; 
Frisbie  v.  Whitney.  9  Wa\\.,  187:  Yosemite  Valley  Case.  15  Wall., 
77  ;  Raihvay  Company  v.  McShaiie.  22  Wall.,  444  ;  and  Shepley  v. 
Cowan  tV-  al.,  91  U.  S.,  338,  that  it  would  be  supererogation  to  go 
over  the  subject  again. 

But  it  is  said  that  Giles  Egerton  and  liis  grantees,  and  all  other 
persons,  are  estopped  from  any  claim  under  his  location  of  the 
northeast  quarter  of  section  18.  by  his  accepting  a  patent  for  the 
southeast  quarter ;  and  b}^  the  further  fact  that  his  grantee,  find- 
ing the  southeast  quarter  already  granted  to  another  party,  (namely, 
to  James  Durney,)  applied  to  Congress  for  leave  to  make,  iind 
actually  made,  another  location  in  lieu  thereof. 

This  question  of  estoppel  was  fully  considered  by  us  when  the 
case  was  formerly  here  ;  and  the  principles  which  were  then  laid 
down  are  equally  decisive  of  the  case  as  it  now  stands.  The 
original  patent  to  Egerton  had  not  then  been  exhibited  in  evi- 
dence, it  is  true.  But  we  do  not  see  that  the  case  is  materially 
altered  by  its  production. 

The  difficulty  of  applying  the  doctrine  of  estoppel  arises  from 
the  fact  that  there  is  no  privity  between  the  defendants  and  the 
parties  who  procured  the  act  of  Congress  referred  to.  The 
defendants  relv.  and  have  a  right  to  rely,  on  the  fact  thnt  the  lot 


648  MiNTER  V.  Ckommei.in. 

in  question  was  located  in  due  form  of  law,  nnd  that  it  thereby 
became  exempt  from  further  location  until  the  first  location  should 
be  set  aside.  The  fact  that  a  clei-ical  error  was  made  in  the  patent 
issued  to  Egerton  :  that  his  orantees,  instead  of  claimino;  the 
northeast  quarter,  (as  they  misjht  have  done,)  claimed  the  south- 
east quarter  which  had  been  previously  granted  to  another  per- 
son :  and  that  they  solicited  the  privilege  of  locating  another  lot 
in  lieu  thereof — are  all  matters  with  which  the  defendants  have 
nothing  to  do.  Congress  might  have  given  to  those  parties  a 
dozen  lots  without  atFecting  the  defendants,  unless  the  latter  were 
in  some  way  bound  by  their  acts.  We  are  unable  to  see  how  they 
were,  or  should  be,  bound  thereby.  They  do  not  claim  under 
those  parties,  and  have  no  privity  with  them  whatever. 

As,  however,  the  question  of  estoppel  was  fully  discussed  in 
tlie  previous  judgment,  it  is  unnecessary  to  enlarge  upon  the 
subject. 

The  Judgment  of  the  circuit  court  is  affirmed. 


William  J.  Mintek  and  others,  plaintiffs  in  error,  v.  Charles 
^•Cromimelix. 

December  Term,  1855.— 18  Howard,  87  ;  1  Miller,  72. 

Attacking  a  Patent  for  Land. 

1.  Under  the  act  of  March  8,  1817,  the  Secretary  of  the  Treasury  was 

authorized  to  decide  when  an  Indian  reservee  had  abandoned  his 
land,  and  the  Secretary  alone  could  ofl'er  it  for  public  sale. 

2.  A  patent  issued  by  him  for  such  land  carries  the  presumption  that  the 

reservee  has  abandoned  it,  and  that  all  the  acts  necessary  to  make  a 
perfect  sale  have  been  complied  with. 

3.  Although  a  patent  may  be  defeated  by  showing  a  want  of  power  in 

the  officer  by  whom  it  was  made,  this  must  be  established  by  the 
party  assailing  it,  and  no  presumption  will  be  indulged  that  the  sec- 
retary did  not  do  his  duty  in  sucli  case. 

Writ  of  error  to  the  »Supreme  Court  of  Alal)ama. 
The  facts  are  fully  stated  in  the  opinion  of  the  court. 
Mr.  Phillips  for  plaintitfs  in  error. 
Mr.  Bradley  for  defendant. 

Mr.  JrsTTCP:  Catron  delivered  the  opinion  o1"  the  court. 
The  material  facts  of  this  case  are  as  follows  : 


MiNTER  r.  Crommelin.  t)49 

On  the  12tli  April,  1820.  a  certificate.  N«).  28.  issued  from  the 
land  office  of  the  United  States  to  Tallasse  Fixico.  a  friendly  chief 
of  tiie  Creeks,  appropriating  to  his  nse  and  occupancj'  fraction 
24,  T.  18.  R.  18,  east  of  Coosa  river,  in  pursuance  of  the  act  of 
Conoress  of  3d  March.  1817.  passed  to  carry  into  effect  the  treat}' 
of  Fort  Jackson  of  August  9.  1814.  with  the  Creek  Indians. 

The  reservee,  Tallasse  Fixico,  was  in  possession  of  the  land, 
and  while  in  possession,  in  1828.  he  sold  it.  for  a  valuable  con- 
sideration, to  George  Taylor,  to  whom  he  gave  a  deed  and  the 
possession  of  the  land  at  the  time  of  the  sale. 

The  said  Taylor,  while  in  possession,  in  July.  1834,  sold  to  C. 
Crommelin,  the  defendant  in  error,  a  portion  of  the  land — about 
forty  acres.  The  purchaser  received  deeds  for  the  same  at  the 
time  of  sale,  dated  r2th  and  14th  Jnly,  1834.  and  immediately, 
or  a  short  time  thereafter,  entered  into  possession,  and  has  con- 
tinued in  possession  until  the  present  time. 

On  the  4th  of  June,  1839,  Isham  Bilberr}^  and  Samuel  Lee 
olitained  from  the  land  oflfice  at  Cahawba  a  pre-emption  certifiate. 
No.  35,014,  in  tfieir  favor,  under  the  pre-emption  act  of  1834,  for 
southeast  fractional  quarter  of  Sec.  24,  T.  18,  R.  18,  being  a  part 
of  Tallasse  Fixico's  reservation,  and  embracing  the  land  in  pos- 
session of  the  defendant  in  error,  and  which  is  the  land  sued  for. 
namely,  the  forty  acres  purchased  l)y  him  from  Taylor. 

On  the  same  day,  namely.  4th  June,  1839.  Bilberry  and  Lee 
assigned  the  pre-emption  certificate  to  the  plaintiffs  in  error — 
Hiram  F.  Saltmarsh.  William  T.  IMinter,  and  Ashley  Parker — in 
whose  favor  a  patent  was  subsequently  issued. 

The  State  court  charged  the  jur}'  "that  if  they  found  the  de- 
fendant held  for  a  series  of  years,  and  continued  to  hold  posses- 
sion under  deeds  from  Taylor,  and  that  Ta3dor  held  possession 
under  Tallasse  Fixico,  and  that  the  plaintiffs  were  never  in  pos- 
session, that  then  the  defendant  held  under  color  of  title,  and  was 
in  a  condition  to  contest  the  validit}^  of  the  patent. 

"2.  That  the  certificate  of  possession  which  issued  to  Tallasse 
F'ixico  was  an  appropriation  of  the  land  by  the  government  of 
the  United  States  to  a  particular  purpose,  and  that  if  Tallasse 
Fixico  in  1828  or  1829  did  abandon  said  land,  it  was  not  subject 
to  entry  under  the  pre-emption  laws  :  that  the  patent  under  which 
the  plaintiffs  claimed  title  was  issued  under  the  pre-emption  laws 
of  the  United  States  ;  that  the  land  conveyed  by  said  patent  was 


650  MiNTER  V.  Crommelin. 

iu»t  subject  to  entry  under  pre-emption,  and  that,  therefore,  said 
patent  had  issued  contrary  to  law,  and  was  void.'' 

To  this  charge  the  plaiutitT's  excepted. 

A  verdict  and  judiiinent  were  rendered  for  the  defendant,  and 
tiie  plaintiffs  took  up  the  cause  to  the  Supreme  Court  of  Alabama, 
where  tlie  judgment  was  aflirmed,  to  bring  up  which  judgment  a 
writ  of  error  was  prosecuted  out  of  this  court. 

The  State  court  in  etlect  pronounced  the  patent  under  which 
the  plaintiflt's  claimed  title  to  be  void  for  want  of  authority  in  the 
officers  of  the  United  States  to  issue  it,  on  the  supposition  that 
the  land  was  reserved  from  sale  when  it  was  entered  and  granted. 
The  presumption  is  that  the  patent  is  valid,  and  passed  the  legal 
title  ;  and,  furthermore,  it  is  prima  facie  evidence  of  itself  that 
all  the  incipient  steps  had  been  regularly  taken  before  the  title 
was  perfected  by  the  patent.  It  has  been  so  held  by  this  court 
in  many  instances,  commencing  with  the  case  of  PoJli:  v.  Wendell, 
1)  Crancli.  98.  99. 

But  if  the  executive  officers  liad  no  authority  to  issue  the  patent 
because  tlie  land  was  not  subject  to  entry  and  grant,  then  it  is 
void,  and  tlie  want  of  power  may  be  jn'oved  by  a  defendant  at 
law.  (9  Cranch,  99.)  And  the  question  here  is,  whether  the  de- 
fendant has  proved  the  want  of  authority. 

The  6th  section  of  tlie  act  of  1817  provides  that  no  land  reserved 
to  a  Creek  warrior  should  be  offered  for  sale  by  the  register  of 
the  land  office  unless  specially  directed  by  the  Secretary  of  the 
Treasur}'. 

Both  by  the  treaty  and  the  act  of  Congress  it  was  declared  that 
if  the  Indian  abandoned  the  reserved  land  it  became  forfeited  to 
the  United  States.  The  fact  of  abandonment  the  secretary  was 
authorized  to  decide,  and  if  he  did  so  find,  he  might  then  order 
the  land  to  be  sold  as  other  public  lands.  The  rule  being  that 
the  patent  is  evidence  that  all  previous  steps  had  been  regularly 
taken  to  justify  making  of  the  patent,  and  one  of  the  necessary 
previous  steps  here  being  an  order  from  the  secretary  to  the  register 
to  offer  the  land  for  sale,  because  the  warrior  had  abandoned  it.  we 
are  bound  to  presume  that  the  order  was  given.  That  such  is  the 
effect,  as  evidence,  of  the  patent  produced  by  the  plaintiffs  was 
adjudged  in  the  case  of  Bagnell  v.  Broderick.  13  Pet..  450,  and 
is  not  open  to  controversy  anywhere,  and  the  State  court  was 
mistaken  in  holding  otherwise. 

The  defendant  being  in  possession,  without  any  title  from  the 


Reichart  v.  Felps.  651 

Ihiited  States,  we  deem  it  unnecessary  to  discuss  the  effect  of  the 
parol  proof  introduced  in  the  State  Circuit  Court  to  defeat  the 
patent. 

It  Ls  they(^f(jre  ordered  dial  the  Jndgmenf  of  the  Sitjiretite  Court 
of  Akd)avi((  f)e  reversed. 

Note. — A  patent  is  the  highest  evidence  of  title,  and  furnislies  the 
pre.snniption  that  all  the  prerequisites  required  by  law  have  been  com- 
plied with.  Sweait  v.  Corcoran,  37  Miss.,  513  ;  Minter  v.  Shirleij,  45  Miss., 
376  ;  Surget  v.  Liillc,  24  Miss.,  118  ;  Hill  v.  Miller,  36  Mo..  182  ;  Burfee  v. 
Plaiste(l,3^  Cal.,  SO  ;    Colhm  v-  BarthH,  44  Cal.,  371. 


RkK  IIAIIT    v.    P'kLPS. 
December  Term,  1867.— 6  Wallace.   160. 

1.  A  decision  in  the  hio-hest  court  of  a  State  against  the  validity  of  a  pat- 
ent granted  by  the  United  States  for  land,  and  whose  validity  is 
drawn  in  question  in  such  court,  is  a  decision  against  the  validitj^  of 
an  authority  exercised  under  the  United  States,  and  the  subject  of 
re-examination  here,  although  the  other  side  have  also  set  up  as 
their  case  a  similar  authority,  whose  validity  is  by  the  same  decision 
affirmed. 

'2.  Patents  by  the  United  States  for  land  which  it  has  previously  granted, 
reserved  from  sale,  or  appropriated,  are  void. 

3.  A  patent  or  instrument  of  contirmation  by  an.  officer  authorized  by 

(  ongress  to  make  it,  followed  by  a  survey  of  the  land  described  in 
the  instrument,  is  conclusive  evidence  that  the  land  described  and 
surveyed,  was  reserved  from  sale. 

4.  Where   the  United  States,  receiving  a   cession  of  lands  claimed  in 

ancient  times  by  France,  and  on  which  were  numerous  French  set- 
tlers, directed  that  such  settlers  should  be  "  contirmed  "  in  their 
'■  possessions  and  rights,"  and  ordered  a  particular  public  officer  to 
examine  into  the  matter,  &c.,  confirmation  by  deed  was  not  neces- 
sary. The  officer,  being  admitted  to  have  authority  to  make  confir- 
mation, could  make  it  by  instrument  in  writing  without  seal. 

5.  Congress  has  no  power  to  organize  a  board  of  revision  to  annul  titles 

confirmed  many  years  by  the  authorized  agents  of  the  government. 

Ekkoti  to  the  Supreme  Court  of  Illinois:  the  case,  which  was 
one  of  ejectment,  bein<>-  tlnis  : 

In  1784,  after  the  war  of  the  Kevolution,  the  State  of  \'iriiinia 
then  claiming  the  Northwest  Territory,  a  part  of  which  makes  the 
now  State  of  Illinois — and  in  whicli.  from  early  times,  inhabitants 


652  Reiciiart  /;.  Fblps. 

of  Cniiadn.  wliile  Canada  was  yet  a  French  province,  had  settled — 
yielded  her  claim  and  title  in  the  Territory  to  the  United  States, 
on  condition  "that  the  French  and  Canadian  inliahitants.  and  other 
settlers  of  the  Kaskaskias,  St.  Vincent's,  and  the  neighborino: 
villao-es.  who  have  professed  themselves  citizens  of  V^ir2:inia.  shall 
have  their  posspssious  and  titles  confirmed  to  them,  and  be  pro- 
tected in  the  enjoyments  of  their  rights  and  liberties." 

On  the  '20th  of  Jnne,  17H8.  Conuress  enacted,  that  from  any 
general  sale  of  lands  in  this  region  there  should  be  a  reserve  of  so 
much  land  as  shonld  satisfy  all  the  just  claims  of  the  ancient 
settlers  ;  ••  that  they  shonld  be  confirmed  in  the  possession  of  such 
lands,  as  they  may  have  had  at  the  l)eginning  of  the  Revolution  ; 
that  measures  be  immediately  taken  for  confirming  them  in  their 
possessions  and  titles,  and  that  the  governor  of  the  Northwestern 
Territory  be  instructed  to  examine  the  titles  and  possessions  of 
the  settlers,  as  above  described,  in  order  to  determine  what  quan- 
tity of  land  they  may  severally  claim,  which  shall  he  laid  ojf  for 
them  a.t  their  own  expense." 

Under  this  authority,  and  some  instructions  not  necessary  to  be 
mentioned,  but  reciting  them  all,  the  then  governor  of  the  North- 
western Territory.  General  St.  Clair,  on  the  12th  of  February,  17iH». 
issued  a  document,  somewhat  in  the  form  of  a  land  patent,  to  one 
Jarrot.  who  "laid  claim"  to  a  piece  of  land  in  the  county  then 
and  now  known  as  St.  Clair,  Illinois,  "confirming"  to  him  in  fee 
a  tract  described.  This  instrument  of  confirmation,  signed  by 
General  St.  Clair,  and  duly  recognized,  October  19th.  1804,  ended 
thus  : 

"In  testhnony  whereof,  I  have  hereunto  set  my  hand,  and  caused 
ike  seal  of  the  territory  to  be  a /fixed,  at  Cincinnati,  &c.,  on  the  T2th  day  of 
February,  A.  I).  1799,  and  of  the  Independence  of  the  United  States 
the  2Hd." 

The  land  claimed  and  thus  described  in  the  patent  was  regularly 
surveyed.  April  10th,  17:)8,  by  one  McCann.  "lawfully  authorized 
to  survey  such  claims." 

This  title  of  Jarrot,  thus  confirmed,  became  afterwards  vested 
in  one  Felps.  Rut  an  opposing  title  also  came  into  existence.  On 
the  20th  of  February,  1812,  an  act  of  ('ongress  was  passed,  author- 
izing a  board  of  commissioners  to  revise  and  re-examine  the  con- 
firmations made  by  the  governor  of  the  Northwestern  Territory  ; 
and  the  board  in  pursuance  of  the  act.  made  such  a  report  to  the 
aiovernraent  of  the  United  States,  that  the  government  by  its  proper 


Reichart  r.  Felps.  653 

ofHcers  rejected  this  claim,  and  subsequently  exposed  the  land 
})reviously  confirmed  to  Jarrot  to  public  sale,  when  a  certain  Keich- 
art  became  the  purcliaser.  Two  i)atents  were  accordingly  issiied 
to  liim  by  the  United  States,  one  in  1838  and  one  in  18o3.  Keicli- 
hart.  asserting  the  title  conferred  by  these  i)atents,  now  brought 
ejectment  in  a  State  Court  of  Illinois  against  Felps.  relying  on 
his  old  French  claim  confirmed  by  Governor  St.  Clair. 

The  plnintiff  having  given  his  patents  of  1888  and  1853  in  evi- 
dence, the  defendant  on  liis  part  offered  the  survey  of  McCann. 
;ind  a  c-ertified  copy  from  the  records  of  the  instrument  of  confir- 
mation given  by  Governor  St.  Clair.  On  tliis  certified  copy  no 
evidence  appeared  of  a  seal  having  ever  been  on  the  orisrinal  : 
though  there  was  oral  testimony  tending  to  show  that  the  original 
did  luive  a  seal  in  wax.  with  an  emblem  and  letters. 

The  plaintiff  objected  to  the  survey,  and  to  the  coj^y  of  tlie  instru- 
ment from  Governor  St.  Clair,  because  it  showed  that  tlie  oriuiual 
had  no  seal. 

The  court  overruled  the  exception,  and  gave  judgment  for  the 
defendant,  so  deciding  against  the  validity  of  the  patents  of  the 
United  States  issued  in  1838  and  1853  ;  though  deciding  in  effect 
in  favor  of  the  validity  of  the  instrument  of  confirmation  professing 
to  be  flone  under  authority  of  Congress.  The  judgment  having 
l)een  affirmed  in  the  Supreme  Court  of  Illinois,  {Reicliart  v.  Felp.s. 
33  Illinois.  433).  tlie  case  was  brought  here  under  the  25th  section 
of  the  Judiciary  Act  of  1781),  giving  a  right  to  the  court  to  re-ex- 
amine the  final  judgments  of  the  highest  State  Courts,  ••  where  is 
drawn  in  (|uestion  the  validity  of  a  statute  or  of  an  authority  exer- 
cised under  the  United  States,  and  the  decision  is  wjainsl  their 
validity." 

Mr.  Bukcr  for  the  plaintiff  in  error:  a  brief  being  filed  for  ]Mr. 
Koerner. 

The  deed  of  cession  of  1784.  put  the  title  into  the  United  States. 

There  was  no  tract  of  which  possession  did  not  vest  in  the  United 
States.  No  power  was  given  by  any  act  of  Congress  to  the  gov- 
ernors of  the  Northwestern  Territory  to  issue  patents  or  deeds  of 
confirmation.  Moreover,  whatever  confirmations  those  governors 
did  issue,  were  not  considered  final  either  by  the  executive  or  by 
Congress. 

The  copy  of  the  j)atent  siiows  that  no  seal  was  ever  affixed  to 
tlie  instrument  of  confirmation.     The  instrument  was.  tlierefore. 


654  Reich  ART  v:  Felps. 

never  executed,  and  is  void.     Oral  testimony  cannot  countervail 
the  better  evidence  of  the  cop}''. 

Mr.  Lynuui  TrumbvU  contra. 

The  validity  of  the  confirmation  or  grant  of  Governor  St.  Clair 
was  brought  before  the  Supreme  Court  of  Illinois  in  1829,  in  an 
ejectment  by  one  Hill,  who  had  entered  and  obtained  a  patent  for 
a  portion  of  the  premises  as  public  land.  The  court  held  the 
governor's  confirmation  valid.  {Doe  ex  clem.  Moore  and  others  v. 
Hill,  Breese,  236.)  After  this  decision,  the  United  States,  recog- 
nized it  as  establishing  a  validity  of  the  grant  by  Governor  St.  Clair, 
passed  an  act,  August  11th.  1842,  refunding  the  money  paid  by 
the  patentee  who  had  entered  it  as  public  land.  (6  Stat,  at 
Large,  860.) 

This  history  of  the  government's  dealing  with  the  land  in  con- 
troversy, shows  that  it  was  reserved  from  the  beginning  from  the 
public  lands  which  were  to  be  sold,  and  that  the  government  never 
intended  it  should  be  sold  as  public  land. 

The  patent  issued  by  Governor  St.  Clair  in  1799  divested  the 
United  States  of  any  claim  it  might  have  had  to  the  land,  and  its 
subsequent  sale  as  public  land  was  therefore  void.  It  is  assumed 
by  the  plaintiff  that  no  authority  was  given  to  the  governor  of 
the  Northwestern  Territory  to  make  confirmations  or  grants  of 
these  ancient  possessions  and  titles  ;  but  the  act  of  June  20th, 
1788.  affords  an  answer  to  tiiis  assumption,  where  it  instructs  the 
governor  of  the  Northwestern  Tei'ritory  to  '•  examine  the  titles 
and  possessions  of  the  settlers,  in  order  to  determine  ?vhat  quantity 
of  land  they  may  severally  claim,  tvhich  shall  be  laid  off  for  them 
at  their  ovm  expense." 

Who  was  to  determine  the  quantity  of  land  the  claimants  were 
to  have,  and  to  lay  it  off  for  Lhem  at  their  own  expense,  except 
he  whose  duty  it  was  to  examine  the  titles  and  possessions  for 
that  purpose?  When  this  was  done,  and  the  land  laid  off  as  the 
law  declared  it  should  be,  the  United  States  gave  up  all  claim,  if 
it  ever  had  an}-,  to  the  land  thus  set  off.  No  other  evidence  of  this 
would  have  been  necessary  than  the  survey  which  was  made  and 
entered  upon  the  land  office  records ;  and  the  fact  that  the  gov- 
ernor thought  proper  to  evidence  the  claimant's  right  by  a  more 
solemn  instrument,  in  the  shape  of  a  patent,  is  only  confirmatory 
of  what  would  have  been  a  good  title  without  it.  All  that  was 
necessary  to  be  done  was  to  separate  the  private  claims  from  the 


Reichart  v.  Felps.  655 

other  Tands,  so  that  the  latter  might  be  brouglit  into  market.  The 
United  States  never  pretended  to  make  chiim  to  the  hinds  set  otf 
to  private  claimants  ;  on  the  contrary,  it  has,  by  numerous  acts, 
as  shown  in  the  history  of  this  case,  recognized  them  as  valid. 

The  governors  exercised  this  power  of  confirmation  for  more 
than  twenty  years,  and  their  confirmations  are  styled  patents  in 
acts  of  Congress.  (Act  of  April  21.  1806:  Pub.  Land  Laws,  &c., 
part  1,  143.) 

A  grant  or  a  concession  made  by  that  officer  who  is  bj'  law 
authorized  to  make  it  carries  with  it  prima  facie  evidence  that  it 
is  within  his  power.  No  excess  of  or  departure  from  them  is  to 
be  presumed.     {Delassus  v.  United  States,  9  Peters,  134.) 

The  land  having  been  thus  previously  granted,  reserved  from 
sale,  or  appropriated,  the  patents  of  1838  and  1853  are  void. 
{Stoddard  v.  Chamhers,  2  Howard,  317.) 

The  objections  taken  below  as  to  the  want  of  seal,  &c..  it  is 
submitted,  need  no  reply  here.  (See  what  is  said  in  Reichart  v. 
Fdps,  the  case  below.  33  Illinois,  439).  The  original  patent,  it 
is  testified  had  a  seal.     None,  however,  was  necessarV. 

Mr.  Justice  Grier  delivered  the  opinion  of  the  court. 

The  patents  under  whicli  the  plaintiff*  claimed  in  the  State  court 
were  declared  by  that  court  to  be  void.  The  case,  therefore,  is 
properly  cognizable  in  this  court  under  the  twenty-fifth  section  of 
the  Judiciary  Act  of  1789. 

He  claimed  under  two  patents  of  the  dates  of  1838  and  1853, 
which  exhibit  conclusive  evidence  of  title  if  the  land  claimed  had 
"not  been  previously  granted,  reserved  from  sale,  or  appro- 
priated." The  only  question  to  be  decided  in  this  case  is  whether 
the  land  had  been  so  granted,  reserved,  or  appropriated. 

The  patent  of  Governor  St.  Clair,  February  12th,  1799,  duly 
registered  in  1804,  with  the  survey  of  McCann,  April  10th,  1798, 
are  conclusive  evidence  that  the  land  in  question  was  reserved 
from  sale.  The  case  of  Moore  v.  Hill  (Breese,  236),  decided 
nearly  forty  years  ago  in  the  Supreme  Court  of  Illinois  on  the 
same  survey  and  grant  which  is  now  before  us,  should  have  been 
conclusive  against  the  objections  which  have  been  revived  on  the 
present  writ  of  error.  "This  very  able  and  elaborate  opinion 
received  the  concurrence  of  the  bar  and  the  country  at  the  time 
it  was  delivered,  and  has  never  been  called  in  question  since. 
There  is  no  fact  in  the  present  case  calculated  to  produce  a  result 


656  Bagnell  v.  Broderick. 

ditf'ereut  from  the  one  tliere  announced.''  {Reichurt  v.  Fc4ps,  33 
Illinois,  439.  A.  D.  1864,  per  Breese,  J.,  who  reported  the  case 
A.  D.  1829.) 

The  objection  that  the  })atent  from  the  governor  was  without 
a  seal  <)Ui>lit  not  to  have  been  made.  The  act  of  Congress  giving 
power  to  the  governor  did  not  re(iuire  him  to  issue  a  patent,  nor 
to  execute  an  instrument  under  seal.  Any  written  evidence  of 
his  confirmation  would  have  been  a  sutlicient  execution  of  the 
power.  All  that  was  necessary  was  an  authentic  declaration  by 
the  United  States,  through  their  authorized  agent,  that  they  had 
no  claim  to  the  land.  It  was  not  a  grant  l)y  the  United  States, 
because  the  title  was  not  in  them. 

Congress  is  bound  to  regard  the  public  treaties,  and  it  had  no 
power  to  organize  a  board  of  revision  to  nullify'  titles  confirmed 
many  3-ears  before  by  the  authorized  agents  of  the  government : 
and  Congress  became  afterwards  so  well  satisfied  itself  of  this 
that  it  passed  an  act  restoring  to  the  i)urchasers  the  money  which 
thev  had  paid  for  titles  obtained  on  the  assumption  of  such  a  right. 

Judgment  ajfirmed. 


Caukv  Bagnell,  and  the  exect'TOksof  Morgan  Bykni:,  plain- 
tiffs in  error.  /•.  Geokgk  W.  Broderick.  defendant  in  error. 

•January  Term,  1889  —13  Peters,  4;Ui  ;  K}  Curtis.  23.t. 

If  executors  are  admitted  to  defend  an  action  of  ejectment,  it  must  be 
because  they  are  devisees;  and  a  judgement  against  them  for  costs, 
de  bo)ns  propriis,  is  I'egular. 

Under  the  act  of  February  17,  1815,  for  the  relief  of  the  sufl'erer.'^  by 
earthquakes  in  the  county  of  New  Madrid,  in  Missouri,  (3  Stats,  at 
Uarge,  211 ),  the  land  located  by  the  sufferer  as  a  compensation  for 
the  land  surrendered  is  not  deemed  to  be  appropriated  by  him,  until 
the  survey  is  returned  ;  the  plat  and  certificate  of  the  survey  being 
the  only  evidence  of  location  recogaized  by  the  government. 

•Congress  has  the  sole  power  to  declare  the  effect,  and  the  precedence  of 
titles  to  the  public  lands  emanating  from  the  United  States. 

Whatever  may  be  the  equities  outstanding  in  third  persons,  the  patentee 
has  the  legal  title  ;  and  a  State  law  cannot  confer  on  the  equitable 
owner,  the.  right  to  maintain  ejectment  against  the  patentee. 

The  case  is  stated  in  the  opinion  of  the  court. 
Beverly  Allen  for  the  plaintifli". 

f^oxe  contra. 


jBagnell  '•.  Brodkrick.  657 

Catuox.  J.,  delivered  the  oi)iniou  of  the  court. 

This  was  an  action  of  ejectment  by  Broderick  against  Bagnell, 
for  a  section  of  land  lying  in  Howard  county.  Missouri,  and  Peter 
and  Luke  Byrne  were  admitted  to  come  in  and  defend  under  the 
following  circumstances  : 

Morgan  liyrne  claimed  to  be  the  owner  of  the  land,  and  he  was 
first  admitted  a  co-defendant  with  Bagnell.  Byrne  died,  and 
Margaret  Byrne,  his  executrix,  was  admitted  as  a  co-defendant. 
Then  she  died,  and  Peter  and  Luke  Byrne,  executors  of  the  last 
will  of  ^Morgan  Byrne,  were  admitted. 

The  judgment  below  is  that  the  plaintiff  recover  the  land,  and 
costs  against  Carey  Bagnell  and  P.  and  L.  Bjanie,  executors  of 
Morgan  Byrne. 

It  is  assigned  for  error  that  the  judgment  for  costs  against  Peter 
and  Luke  Byrne  should  have  been  de  bonis  testator  is  and  not  de 
bonis  jiropriis. 

The  presumption  is  that  the  judgment  of  the  circuit  court  is 
proper,  and  it  lies  on  the  plaintiffs  in  error  to  show  the  contrar3\ 
(1  Pet..  23.)  The  executors  of  INIorgan  Byrne  had  no  interest  in 
the  land  by  virtue  of  their  letters  testamentary,  but  could  well 
have  an  interest  by  the  will  of  their  testator.  On  no  other  ground 
could  tliey  properly  have  been  permitted  to  come  in  and  defend 
in  the  character  of  executors.  On  this  ground,  therefore,  we  pre- 
sume they  were  admitted,  and.  like  other  defendants  in  ejectment, 
having  failed  to  show  the  Jjetter  title,  the  recovery  was  proper, 
and  costs  necessarily  followed  the  judgment  de  bonis  propriis. 

The  plaintiff,  Broderick.  claimed  b}"  virtue  of  a  patent  from  the 
United  States,  to  John  Robertson,  jr.,  dated  June  17,  1820  ;  and 
deeds  in  due  form  from  Robertson  and  others  to  himself,  proved 
Carey  in  possession  at  the  commencement  of  the  suit,  and  here 
rested  his  case. 

To  show  that  the  better  title  had  been  in  ^Morgan  Byrne,  the 
defendants  produced  a  deed  dated  20th  May,  1809.  from  John 
Robertson,  jr.,  to  Edward  Robertson,  jr.,  for  seven  hundred  and 
fifty  arpens  of  land  h'ing  in  Big  Prairie  township  in  the  district 
of  New  Madrid,  adjoining  the  lands  of  Scheckler  and  Cox.  and 
which  deed  authorized  Edward  Robertson  to  procure  a  patent 
from  the  government.  By  different  conversances,  Morgan  Byrne 
claimed  title  to  the  seven  hundi-ed  and  fifty  arpens  through  and 
under  Edward  Robertson. 

The   land   lies   in  the  county  of  New  Madrid,  in  the   State  of 

42 


658  Bagnell  v.  Broderick. 

Missouri,  and  was  injured  by  the  earthquakes  of  December,  1811. 
To  relieve  the  inhabitants  who  had  suffered  by  this  calamity. 
Congress  passed  the  act  of  17th  February,  1815,  providing  that 
those  whose  lands  had  been  materially  injured  should  be  author- 
ized to  locate  the  same  quantity  on  any  of  the  public  lands  in  the 
Missouri  territory,  but  not  exceeding  in  any  case  six  hundred 
and  forty  acres,  on  which  being  done,  the  title  to  the  land  injured 
should  revert  to  the  United  States. 

The  recorder  of  land  titles  for  the  territory  of  Missouri  was 
made  the  judge  "  to  ascertain  who  was  entitled  to  the  benefit  of 
the  act,  and  to  what  extent,"  on  the  examination  of  the  evidences 
of  claim ;  as  compensation  for  which,  if  well  founded,  he  was 
directed  to  issue  a  certificate  to  the  claimant.  This  certificate 
having  issued,  and  a  notice  of  location  having  been  filed  in  the 
surveyor  general's  oflice,  on  application  of  the  claimant  the  sur- 
veyor was  directed  to  survey  the  land  selected,  and  to  return  a 
plat  to  the  office  of  the  recorder  of  land  titles,  together  with  a 
notice  in  writing,  designating  the  tract  located,  and  the  name  of 
the  claimant  on  whose  behalf  the  location  and  survey  had  been 
made,  which  plat  and  notice  it  was  the  duty  of  the  recorder  to 
record  in  his  office,  and  he  was  required  to  transmit  a  report  of 
the  claim  as  allowed,  together  with  the  location  bj^  surve3%  to  the 
Commissioner  of  the  General  Land  OflSce,  and  deliver  to  the 
claimant  a  certificate  stating  the  circumstances  of  the  case,  and 
that  he  was  entitled  to  a  patent  for  the  tract  designated.  The 
notice  of  location  made  by  the  claimant  with  the  surve3^or  gen- 
eral, is  no  part  of  the  evidence  on  which  the  General  Land  Office 
acted,  but  the  patent  issued  on  the  plat  and  certificate  of  the 
surveyor,  returned  to  the  recorder's  oflfice,  and  which  was  by  him 
reported  to  the  General  Land  Office. 

The  United  States  never  deemed  the  land  appropriated  until 
the  surver  was  returned,  for  the  reason  that  there  were  many  titles 
and  claims,  perfect  and  incipient,  emanating  from  the  provincial 
governments  of  France  and  Spain,  and  others  from  the  United 
States,  in  the  land  district  where  the  New  Madrid  claims  were 
subject  to  be  located.  So  there  were  lead  mines  and  salt  springs 
excluded  from  entry.  Then,  again,  the  notice  of  entry  might  be 
in  a  form  inconsistent  with  the  laws  of  the  United  States  ;  in  all 
which  cases  no  surve}^  could  be  made  in  conformity  to  it.  If  no 
such  objection  existed,  it  was  the  duty  of  the  surveyor  to  conform  to 
the  election  made  by  the  claimant,  having  the  location  certificate 


Bagnell  v.  Broderick,  659 

from  the  recorder.  Still,  the  only  evidence  of  the  location  recog- 
nized by  the  government  as  an  appropriation,  was  the  plat  and 
certificate  of  the  surveyor. 

Such  is  the  information  obtained  from  the  General  Land  Office. 
As  evidence  of  the  form  of  location,  and  practice  of  the  office,  we 
have  been  furnished  with  a  copy  of  the  plat  and  certificate  of  sur- 
vey on  which  the  patent  in  this  record  is  founded,  and  which  is 
annexed.  As  before  stated,  the  patent  to  John  Robertson,  jr..  is 
deemed  to  have  been  issued  regularly,  and  we  must  presume  that 
all  the  usual  incipient  steps  had  been  taken  before  the  title  was 
perfected.  (5  Wheat.,  293;  7  Wheat.,  157;  6  Pet.,  724,  727, 
728,  742.)  And  of  course,  that  the  certificate  of  survey  returned 
by  the  recorder  was  in  the  name  of  John  Robertson,  jr.  The 
patent  merged  the  location  certificate  on  which  the  survey  was 
founded,  so  that  no  second  survey  could  be  made  by  virtue  of  the 
certificate.     Thus  fortified  stands  the  title  of  the  plaintiff  below. 

The  defendant  tliere  relied  upon  a  notice  of  entrj-  filed  with 
the  surveyor  general,  in  these  words  :  "  Morgan  Byrne,  as  the 
legal  representative  of  John  Robertson,  jr..  enters  six  hundred 
and  forty  acres  of  land  by  virtue  of  a  New  Madrid  certificate, 
issued  by  the  recorder  of  land  titles  for  the  Territorj^  of  Mis- 
souri, and  dated  St.  Louis,  September,  1818,  and  numbered  448, 
in  the  following  manner,  to  wit,  to  include  section  No.  32,  in 
township  No.  50,  north  of  the  base  line,  range  No.  15,  west  of 
the  fifth  principal  meridian. 

"  Morgan  Byrne. 

St.  Louis,  Oct.  8,  1818." 

Which  is  founded  on  the  following  certificate  of  location  : 

"No.  448. 

"  St.  Louis,  Office  of  the  Recorder  of  Land  Titles, 

"  September,  1818. 
"  I  certify  that  a  tract  of  six  hundred  and  forty  acres  of  land, 
situate,  Big  Prairie,  in  the  county  of  New  Madrid,  which  appears, 
from  the  books  of  this  office,  to  be  owned  by  John  Robertson, 
jr.,  has  been  materially  injured  by  earthquakes  ;  and  that,  in  con- 
formity with  the  provisions  of  the  act  of  Congress  of  the  17th 
February,  1815,  the  said  John  Robertson,  jr.,  or  his  legal  repre- 
sentatives, is  entitled  to  locate  six  hundred  and  forty  acres  of 
land  on  any  of  the  public  lands  of  the  Territory  of  Missouri,  the 


660 


Bagnell  r.  Broderick. 


sale  of  which  is  authorized  In'  law.     (Vide  Coin'rs  Cer'e.  No  1126, 
exf  d. 

"  FrEDEJIH  K  l^ATES." 

This  is  obviously  the  foundation  of  the  survey'  and  patent  to 
John  Robertson,  jr. — a  fact  admitted  ;  but  it  is  insisted  that 
]5_vrne  had  the  better  title  to  the  recordei*'s  certificate  ;  that  it 
issued  to  him,  in  fact,  as  the  legal  representative  of  John  Kobert- 
son,  ,jr. ;  and  that  the  notice  of  entry  filed  with  the  surve^'or 
general,  nested  in  Byrne  a  title  of  a  character  on  which  he  could 
have  maintained  an  ejectment  against  Broderick  :  and  that,  con- 
sequentl3^  his  devisees  could  successfully  defend  themselves. 
That  they  could,  if  the  entry  be  the  better  title,  mast  be  admitted. 

There  is  evidence  in  this  record  tending  to  sliow  that  Morgan 
Byrne  made  the  relinquishment  of  the  New  Madrid  claim  :  but 
the  same  evidence  (being  extracts  from  the  records  of  the  record- 
ers office),  show  that  the  location  certificate  was  granted  to  John 
Robertson,  jr.     Thej'  are  as  follows  : 


Warr.  or  ord  Survey 
of  survey. 


By  U.  S. 

Corn's  for 

200    arpens, 

cer.   1126. 


Notice  to  the 
Recorder. 


Quant'y    Where 
claimed,  situated 


John  Robertson,  jr, 


750 
iirpeus. 


Big 
Prairie. 


Opin.  of  the 
Recorder. 


Ganted  640 
acres  E. 


A  list  of  relinqueshments  of  lands  materially  injured  by  earthgnakes  in  the  late 
county  of  New  Madrid^  (present)  State  of  Missouri^  under  the  act  of  Congress 
ofMtli  February^  1815. 


Loc'n  '     Claimants 
Cert.    '■    of  record. 

f 

Quantity. 

Situation. 

Relinquishment  by  whom 
and  general  remarks. 

1 

1  John  Rob'ert- 
448               son,  jr. 

1 

640  acres. 

Big 
Prairie. 

Morgan  Byrne, 
legal   representative. 

This  evidence,  taken  in  connection  with  the  deeds  to  Edward 
Robertson,  and  those  from  him  and  others  to  Byrne,  it  is  insisted, 
establish  the  better  equity  to  have  been  in  the  latter,  and  that  this 


Bagnell  v.  Broderick.  661 

oqiiity  can  be  made  available  for  the  defendants  in  tlie  circuit  court. 
1\V  force  of  the  act  of  the  legislature  of  Missouri,  which  provides 
that  an  action  of  ejectment  may  be  maintained  on  "  a  New 
Madrid  location."  (See  Rev.  Code  of  Missouri,  1825,  p.  343,  §  2  ; 
and  Rev.  Code  of  1835,  pp.  234,  235,  §§1,2.  9.) 

Our  opinion  is.  first,  that  the  location  referred  to  in  the  act  is 
the  plat  and  certificate  of  survey  returned  to  the  recorder  of  land 
titles,  because,  bv  the  laws  of  the  United  States,  this  is  deemed 
the  first  appropriation  of  the  land ;  and  the  legislature  of  Mis- 
souri had  no  power,  had  it  made  the  attempt,  to  declare  the  notice 
of  location  filed  with  the  surveyor  general  an  appropriation  con- 
trary to  the  laws  of -the  United  States.  The  survey  having  been 
made  and  certified  to  the  recorder,  in  the  name  of  John  Robert- 
son, jr.,  Byrne  had  no  title  that  would  sustain  an  ejectment  in 
anj^  case  ;  and,  of  course,  those  claiming  under  him  cannot  suc- 
cessfully defend  themselves  on  the  evidence  they  adduced. 

But,  secondly,  suppose  the  plat  and  certificate  of  location  liad 
been  made  and  returned  to  the  recorder  in  the  name  of  Morgan 
Byrne,  and  that  it  had  been  set  up  as  the  better  title  in  opposi- 
tion to  the  patent  adduced  on  behalf  of  the  plaintifl!'  in  ejectment, 
still,  we  are  of  opinion  the  patent  would  have  been  the  better 
legal  title.  We  are  bound  to  presume,  for  the  purposes  of  this 
action,  that  all  previous  steps  had  been  taken  by  John  Robertson, 
jr.,  to.  entitle  himself  to  the  patent,  and  that  he  had  the  superior 
right  to  obtain  it.  nothwithstanding  the  claim  set  up  by  Byrne  ; 
and  having  obtained  the  patent.  Robertson  had  the  best  title  (to 
wit,  the  fee,)  known  to  a  court  of  law. 

Congress  has  the  sole  power  to  declare  the  dignity  and  eflfect  of 
titles  emanating  from  the  United  States,  and  the  whole  legisla- 
tion of  the  federal  government,  in  reference  to  the  public  lands, 
declares  the  patent  the  superior  and  conclusive  evidence  of  legal 
title,  until  it  issues  the  fee  is  in  the  government ;  by  the  patent 
it  passes  to  the  grantee,  and  he  is  entitled  to  recover  the  posses- 
sion in  ejectment. 

If  B3a-ne"s  devisees  can  show  him  to  have  been  the  true  owner 
of  the  seven  hundred  and  fifty  arpens  of  land,  relinquished  because 
injured  by  earthquakes,  and  that  the  patent  issued  to  John  Rob- 
ertson, jr.,  by  mistake,  then  the  equity  side  of  the  circuit  court 
is  the  proper  forum,  and  a  bill  the  proper  remedy  to  investigate  the 
equities  of  the  parties.  But  whether  any  equity  existed  in  virtue 
of  the  act  of  1815,  and  if  so,  whether  it  was  adjudged  between  the 


662  Bagnbll  I'.  Broderick. 

parties  by  the  recorder  of  land  titles,  are  questions  on  whicli  we 
have  formed  no  opinion,  and  wish  to  be  understood  as  not  inti- 
mating any. 

We  have  been  referred  to  the  case  of  Rofss  v.  Barland,  1  Pet., 
662,  as  an  adjudication  involving  the  principles  in  this  case ;  we 
do  not  think  so.  In  that  there  were  conflicting  patents ;  the 
younger  being  founded  on  an  appropriation  of  the  specific  land 
by  an  entry  in  the  land  office  of  earlier  date  than  the  senior 
patent.  The  court  held  that  the  entry  and  junior  patent  could 
be  given  in  evidence  in  connection  as  one  title  so  as  to  overreach 
the  elder  patent.  The  practice  of  giving  in  evidence  a  special 
entry  in  aid  of  a  patent,  and  dating  the  lega^l  title  from  the  date 
of  the  entry  is  familiar  in  some  of  the  Sj:ates,  and  especially  in 
Tennessee,  yet  the  entry  can  only  come  in  aid  of  a  legal  title, 
and  is  no  evidence  of  such  title  standing  alone,  when  opposed  to 
a  patent  for  the  same  land.  Where  the  title  has  passed  out  of 
the  United  States  by  conflicting  patents,  as  it  had  in  the  case  in 
1  Pet.,  there  can  be  no  objection  to  the  practice  adopted  by  the 
courts  of  Mississippi  to  give  effect  to  the  better  right  in  any  form 
of  remedy  the  legislature  or  courts  of  the  State  may  prescribe. 

Nor  do  we  doubt  the  power  of  the  States  to  pass  laws  authoriz- 
ing purchasers  of  lands  from  the  United  States  to  prosecute 
actions  of  ejectment  upon  certificates  of  purchase  against  tres- 
passers on  the  lands  purchased  ;  but  we  deny  that  the  States 
have  any  power  to  declare  certificates  of  purchase  of  equal  dig- 
nity with  a  patent.     Congress  alone  can  give  them  such  effect. 

For  the  several  reasons  stated,  we  have  no  doubt  the  judgment 
in  the  circuit  court  was  correct,  and  order  it  to  be         Affirmed. 

In  the  cases  of  Sampson  against  Broderick  and  McCnnie  against 
the  same,  the  judgments  are  also  Affirmed. 

M'Lean,  J.,  dissented. 

For  dissenting  opinion,  see  13  Pet.,  p.  451. 

Mr.  Justice  M'Kinley  concurred  in  the  opinion  with  Mr.  Jus- 
tice M'Lean. 


Hooper  r.  Scheimer.  663 

Nathan  E.  IIoopei;   and   others,  plaintiffs  in   error,  v.  Jacob 

Scheimer. 

Dc-ocmbcr  Torm.  IS.IO.— 23  Howard,  '235;  3  Miller,  .")21. 

Kjerfiiievl. — Jirf/is/fi'y  Cfrtifir.ah  no  Till/-. 

1.  11  i.s  the  >;ettle(l  doctrine  of  tliis  court,  that  no  action  of  ejectment  can 

be  unstained  in  the  federal  courts  on  a  certificate  of  entry  in  the 
land  office.  Where  the  statutes  of  the  State  have  provided  other- 
wise, it  is  only  binding  on  the  State  courts,  and  not  on  the  federal 
courts . 

2.  In  all  courts  of  common  law  the  patent  from  the  United  States  carries 

the  fee,  and  is  the  best  title  known  to  sucli  courts. 

Writ  of  error  to  the  Circuit  Court  for  the  eastern  district  of 
Arkansas.     The  case  is  state  in  the  opinion. 
Mr.  StilhceU  for  plaintiff  in  error.      , 
Mr.  Hcmpstcail  for  defendant. 

Mr.  Justice  Catron  delivered  the  opinion  of  the  court. 

An  action  of  ejectment  was  brought  in  the  Circuit  Court  of 
the  United  States  for  the  eastern  district  of  Arkansas,  founded 
on  an'entry  made  in  a  United  States  land  office.  This  was  the 
only  title  produced  on  the  trial  i)y  the  plaintiffs. 

The  defendant  held  possession  under  a  patent  from  the  United 
States  to  John  Pope,  (governor.  &c..)  with  which  the  defendant 
connected  liimself  by  a  regular  chain  of  conveyances.  The  cir- 
cuit court  held  the  patent  to  be  the  better  legal  title,  and  so 
instructed  the  jury,  who  found  for  the  defendant :  and  the  plain- 
tiffs prosecute  tliis  writ  of  error  to  reverse  tliat  judgment. 

By  the  statute  of  Arkansas,  an  action  of  ejectment  may  be 
maintained  where  the  plaintiff  claims  possession  by  virtue  of  an 
entry  made  witii  tiie  register  and  receiver  of  the  proper  land  office 
of  tlie  United  States.     (Ar.  Digest.  454.) 

This  court  held,  in  the  case  of  Bagnell  tt  <d.  v.  Broderick,  (13 
Peters,  450).  "  that  Congress  had  the  sole  power  to  declare  the 
dignity  and  effect  of  a  patent  issuing  from  the  United  States, 
that  a  patent  carries  the  fee,  and  is  the  best  title  known  to  a 
court  of  law.'"     Such  is  the  settled  doctrine  of  this  court. 

But  there  is  another  question  standing  in  advance  of  the  fore- 
going, to  wit,  can  an  action  of  ejectment  be  maintained  in  the 
federal  courts  against  a  defendant  in  possession  on  an  entry 
made  with  the  register  and  receiver  ? 


664  F'enn  v.  Holme. 

It  is  also  the  settled  doctrine  of  this  court  that  no  action  of 
ejectment  will  lie  on  such  an  equitable  title,  notwithstandino;  a 
State  legislature  may  have  pro\ided  otherwise  l)y  statute.     The 
law  is  only  binding  on  the  State  courts,  and  has  no  force  in  the 
circuit  courts  of  the  Union.     [Fenn.  v.  Ilolmp.  21  How..  482.) 

Ft  is  ordered  that  the  judciment  Jje  affirmed. 

No.  60  depends  on  the  same  titles  and  facts  and  instructions 
to  the  jury  as  are  set  forth  in  oO.  and  the  same  verdict  and  judg- 
ment were  given  in  the  circuit  court. 

We  order  it  to  be  affirmed  Jikenise. 

Note. — The  same  doctrine  held  in  Folk  v.  WeudeJ,  -o  Wheaton,  293; 
Fotterson  v.  Wiun,  11  Wheaton,  380;  Stringer  v.  Young,  3  Pet.,  320; 
Boaydni.au  v.  Reed,  and  Ford,  6  Pet.,  328;  Stoddard  v.  Chambers,  2  How.* 
28-1;  Gdmer  v.  Foindexter,  10  How.,  257;  BuJlance  v.  Forsyth,  13  How., 
18 ;  Greer  v.  Mezes,  24  How.,  2(!S ;  Singleton  v.  Tonchard,  1  Black,  342  ; 
Carpenter  v.  Montgomery,  13  Wall..  480. 

If  the  patent  is  not  absolutely  void,  but  merely  voidable,  it  must  pre- 
vail in  an  action  at  law.     Dodge  v.  Fertz,  2  Sawyer,  645. 

An  equitable  title  however  strong  it  may  be,  cannot  be  set  up  at  law 
to  defeat  a  leg-al  title  by  pateut.     Baird  v.  Wolf,  4  McLean,  549. 

^ 


William  Fenn.  plaintift  in  error,  v.  Peter  H.  Holme. 
December  Term,  18.""<S.— 24  Howard,  481  ;  y,  Miller,  111, 

Missouri  Ja(iii/   Tide.'i — Ejectment. 

1.  In  an  action  of  ejectment  in  tiie  courts  of  the  United  States,  the  plain- 

tiff can  only  recover  on  the  legal  title,  notwithstanding  any  statute 
of  the  State  which  authorizes  a  recovery  on  an  equitable  and  in- 
choate legal  title. 

2.  Hence,  in  a  suit  on  the  right  conferred  by  the  location  of  a  New  Mad- 

rid certificate  in  Missouri,  where  no  patent  has  issued  on  said  loca- 
tion, the  title  being  in  the  United  States,  the  action  cannot  be 
maintained  in  the  Circuit  Court  of  the  United  States. 

3.  The  distinction  between  the  remedies  at  law  and  in  equity,  must  be 

preserved  in  -those  courts,  without  regard  to  State  statutes  on  the 
subject. 

Wpax  OF  EKiiOR  to  the  Circuit  C'ourt  for  the  District  of  Mis- 
souri.    The  case  is  fully  stated  in  the  opinion. 


Fenn  v.  Holme.  665 


Mr.  Gihsou  and  Mr.  Gamble  for  plaintiff. 
Mr.  Leonard  for  the  defendant. 


Mr.  Justice  Daniel  delivered  tlie  opinion  of  the  court. 

The  defendant  in  error,  as  a  citizen  of  the  State  of  Illinois, 
instituted  an  action  of  ejectment  against  the  plaintilf  in  the  court 
al)ove  mentioned,  and  obtained  a  verdict  and  judgment  against 
him  for  a  tract  of  land,  described  in  the  declaration  as  a  tract  of 
land  situated  in  St.  Louis  count3%  being  the  same  tract  of  land 
known  as  United  States  survey  No.  2,489,  and  located  by  virtue 
of  a  New  Madrid  certificate  No.  105.  and  containing  six  hundred 
and  fort}'^  acres. 

Both  the  plaintiff  and  defendant  in  the  circuit  court  trace  the 
origin  of  their  titles  to  the  settlement  claim  of  one  James  Y. 
O'Carroll,  who,  it  is  stated,  obtained  permission  as  early  as  the 
6th  of  September,  1803,  from  the  Spanish  authorities,  to  settle 
on  the  vacant  lands  in  upper  Louisiana,  and  who,  in  virtue  of  that 
permission,  and  on  proof  by  one  Ruddell,  of  actual  inhabitancy 
and  cultivation  prior  to  the  20th  of  December.  1803.  claimed  the 
(piantity  of  one  thousand  arpens  of  land  near  the  Mississippi, 
in  the  district  of  New  Madrid.  Upon  this  application  the  land 
commissioners,  on  tlie  13th  of  INIarch.  1806,  made  a  decision  by 
which  they  granted  to  the  claimant  one  thousand  arpens  of  land, 
situated  as  aforesaid,  provided  so  much  be  found  vacant  there. 

On  the  14th  of  December,  1810.  the  commissioners,  acting  again 
on  the  claim  of  O'Carroll  for  one  thousand  arpens.  declare  tliat 
the  board  grant  to  James  Y.  O'Carroll  three  hundred  and  fifty 
acres  of  land,  and  order  that  the  same  be  surveyed  as  nearly  in  a 
square  as  may  be,  so  as  to  include  his  improvements.  The  claim 
thus  allowed  by  the  commissioners  was,  by  the  operation  of  the 
4th  section  of  the  act  of  Congress,  approved  March  3.  1813. 
enlarged  and  extended  to  the  quantity  of  six  hundred  and  forty 
acres.     {Vide  Stat,  at  Large,  p.  813.  vol.  2.) 

In  the  year  1812,  a  portion  of  the  lands  in  the  county  of  New 
Madrid  having  been  injured  by  earthquakes,  Congress,  by  an  act 
approved  on  the  17th  of  February,  1815,  provided  that  "any  per- 
son or  persons  owning  lauds  in  the  county  of  New  Madrid,  in  the 
Missouri  territory,  with  the  extent  the  said  county  had  on  the 
10th  day  of  November,  1812.  and  whose  lands  have  been  ma- 
terially injured  by  earthquakes,  shall  be  and  they  hereby  are 
authorized  to  locate  the  like  quantity  of  land  on  any  of  the  public 


^66  Fenn  v.  Holme. 

lands  of  the  said  territory,  the  sale  of  which  is  authorized  by 
law."     (Stat,  at  L.,  vol.  3,  p.  211.) 

On  the  30th  of  November,  1815,  the  recorder  of  land  titles  for 
Missouri,  upon  evidence  produced  to  him  that  the  six  hundred 
and  forty  acre  grant  to  James  Y.  O'Carroll  had  been  materially 
injured  by  earthquakes,  in  virtue  of  the  act  of  Congress  of  1815, 
granted  to  said  O'Carroll,  New  Madrid  certificate  No.  105,  by 
which  the  grantee  was  authorized  to  locate  six  hundred  and  forty 
acres  of  land  on  an}'  of  the  public  lands  in  the  Territory  of  Mis- 
souri, the  sale  of  which  was  authorized  by  law.  Upon  the  con- 
flicting claims  asserted  under  this  New  Madrid  certificate,  and 
upon  the  ascertainment  of  the  locations  attempted  in  virtue  of  its 
authority,  this  controversy  has  arisen. 

Each  part}'  to  this  controvers}^  professes  to  deduce  title  from 
the  settlement  right  of  O'Carroll,  through  mesne  conveyances 
proceeding  from  him.  With  respect  to  the  construction  of  these 
conveyances,  several  prayers  have  been  presented  by  both  plain- 
tiff and  defendant,  and  opinions  as  to  their  effect  have  been 
expressed  b}'  the  circuit  court ;  but  as  to  the  rights  really  con- 
ferred or  intended  to  be  conferred  by  tliese  transactions,  it  would, 
according  to  the  view  of  this  cause  taken  by  this  court,  be  not 
merely  useless,  but  premature  and  irregular  to  discuss,  and  much 
more  so  to  undertake  to  determine  them. 

This  is  an  attempt  to  assert  at  law,  and  by  a  legal  remedy,  a  right 
to  real  property — an  action  of  ejectment  to  establish  the  right  of 
possession  in  land. 

That  the  plaintiff  in  ejectment  must  in  all  cases  prove  a  legal 
title  to  the  premises  in  himself,  at  the  time  of  the  demise  laid  in 
the  declaration,  and  that  evidence  of  an  equitable  estate  will 
not  be  sufficient  for  a  recovery,  are  principles  so  elementary  and  so 
familiar  to  the  profession  as  to  render  unuecessarj'  the  citation  of 
authority  in  support  of  them.  Such  authority  may,-  however,  be 
seen  in  the  cases  of  Goodtitle  v.  Jones.  7  T.  R.,  49  ;  of  Doe  v.  Wroot, 
5  East.,  132.  and  of  Roe  v.  Head,  8  T.  R.,  118.  This  legal  title 
the  plaintiff  must  establish  either  upon  a  connected  documentary 
chain  of  evidence,  or  upon  proof  of  possession  of  sufficient  dura- 
tion to  warrant  the  legal  conclusion  of  the  existence  of  such  written 
title. 

By  the  constitution  of  the  United  States,  and  by  the  acts  of 
Congress  organizing  the  federal  courts,  and  defining  and  in  vest- 
ing the  jurisdiction  of  these  tribunals,  the  distinction  between 


Fenn  r.  Holme.  667 

c'oiiimon  law  and  equity  jurisdiction  has  been  explicitly  declared 
and  carefully  defined  and  establislied.  Thus,  in  section  2.  article 
3.  of  the  constitution,  it  is  declared  that  -'the  judicial  poAver  of  the 
United  States  shall  extend  to  all  cases  in  law  and  efputy  arising 
under  this  constitution,  the  laws  of  tiie  United  States."'  &c. 

In  the  act  of  Coniiress  -'to  establish  the  judicial  courts  of  the 
I'uited  States,"  this  (Ustrihation  of  law  and  equity  i)owers  is 
frequently  referred  to;  and  by  the  16tli  section  of  that  act.  as  if 
to'idace  the  distinction  between  tliose  powers  oeyond  misappre- 
hension, it  is  provided  "that  suits  in  equity  shall  not  be  maintained 
in  either  of  the  courts  of  the  United  States  in  au}^  case  where  plain. . 
adequate,  and  complete  remedy  may  be  had  at  law.'*  at  the  same 
time  affirming  and  separating  the  two  classes  or  sources  of  judicial 
authority.  In  every  instance  in  which  this  court  has  expounded 
the  phrases,  proceedings  at  the  common  law  and  proceedings  in- 
equity, with  reference  to  the  exercise  of  the  judicial  powers  of  the 
courts  of  the  United  States,  they  will  be  found  to  have  interpreted 
the  former  as  signifying  the  application  of  the  definitions  and 
principles  and  rules  of  the  commcm  law  to  rights  and  obligations 
essentially  legal ;  and  the  latter,  as  meaning  the  administration 
with  reference  to  equitable  as  contradistinguished  from  legal 
rights,  of  the  equity  law  as  defined  and  enforced  by  the  court  of 
chancery  in  England. 

In  the  case  of  Robinson,  v.  CampbeU.  3  Wheat.,  on  page  221, 
this  court  have  said:  "By  the  laws  of  the  United  States,  the 
circuit  courts  have  cognizance  of  all  suits  of  a  civil  nature  at  com- 
mon law  and  in  equity,  in  cases  which  fall  within  the  liinits  pre- 
scribed by  those  laws.  By  the  24th  section  of  the  Judiciary  Act 
of  1789,  it  is  provided,  that  the  laws  of  the  several  States,  except 
where  the  constitution,  treaties,  or  statutes  of  the  United  States, 
shall  otherwise  provide,  shall  be  regarded  as  rules  of  decision  in 
trials  at  common  law  in  the  courts  of  the  United  States,  in  cases 
where  the}^  apply.  The  act  of  INIay,  171)2.  confirms  the  modes  of 
proceeding  then  used  as,  common  law  in  the  courts  of  the  United 
States,  and  declares  that  the  modes  of  proceeding  in  suits  in  equity 
shall  be  according  to  the  principles,  rules,  and  usages,  which  belong 
to  courts  of  equity,  as  contradistinguished  from  courts  of  common 
law.  except  so  far  as  may  have  been  provided  for  by  the  act  to 
establish  the  judicial  courts  of  the  United  States.  It  is  material 
to  consider  whether  it  was  the  intention  of  Congress  by  these  pro- 
visions to  confine  the  courts  of  tlie  United  States,  in  their  mode  of 


668  Fenn  u.  Holme. 

udininisteriiiii-  relief,  to  the  same  remedies,  and  those  only,  with  all 
their  incidents,  which  existed  in  the  conrts  of  the  respective  States  ; 
in  other  words,  whether  it  was  their  intention  to  give  the  party 
relief  at  law.  where  the  practice  of  the  State  conrts  wonld  give 
it,  and  relief  in  eqnity  only  when,  according  to  such  practice,  a 
plain,  adequate,  and  complete  remedj^  could  not  be  had  at  law. 
In  some  States  in  the  Union,  no  court  of  chancery  exists  to  admin- 
ister equitable  relief.  In  some  of  those  States,  courts  of  law  recog- 
nize and  enforce  in  suits  at  law  all  equitable  rights  and  claims 
whicli  a  court  of  equity  would  recognize  and  enforce  :  in  others, 
all  relief  is  denied,  and  such  equitable  claims  and  rights  are  to  be 
considered  as  mere  nullities  at  law.  A  construction,  therefore, 
that  would  adopt  the  State  practice  in  all  its  extent,  would 
at  once  extinguish  in  such  States  the  exercise  of  equitable 
jurisdiction. 

'•  The  acts  of  Congress  have  distinguished  between  remedies  at 
common  law  and  equity,  yet  this  construction  would  confound 
them.  The  court  therefore  think,  that  to  effectuate  the  purposes 
of  the  legislature,  the  remedies  in  the  courts  of  the  United  States 
are  to  be  at  common  law  or  in  equity — ijbt  according  to  the  prac- 
tice in  the  State  courts,  but  according  to  the  principles  of  common 
law  and  equity,  as  distinguished  and  defined  in  that  country  from 
which  we  derive  our  knowledge  of  those  principles." 

In  the  case  of  Parsons  v.  Bedford  et  al.,  o  Peters,  on  pp.  446. 
447.  this  court  in  speaking  of  the  seventh  amendment  of  the  con- 
stitution, and  of  the  state  of  public  sentiment  which  demanded 
and  produced  that  amendment,  say  : 

"  The  constitution  had  declared  in  the  od  article  that  the  judi- 
cial power  shall  extend  to  all  cases  in  law  and  equity  arising  under 
this  constitution,  the  laws  of  the  United  States,  and  treaties  made 
or  which  shall  be  made  under  their  authoi'ity,  &c.  It  is  well  known 
that  in  civil  suits,  in  courts  of  equity  and  admiralty,  juries  do 
not  intervene,  and  that  courts  of  e(iuity  use  the  trial  by  jur}'^  only 
in  extraordinary  cases.  When,  therefore,  we  find  that  the  amend- 
ment requires  that  the  right  of  trial  by  jury  shall  be  preserved 
in  suits  at  common  law.  the  natural  conclusion  is  that  the  distinc- 
tion was  present  in  the  minds  of  the  framers  of  the  amendment. 
By  common  law  they  meant  what  the  constitution  denominated 
in  the  3d  arti.'le — law,  not  merely  suits  which  the  common  law 
recognized  among  its  old  and  settled  proceedings,  but  suits  in 
which  legal  rights  were  to  be  ascertained  and  determined,  in  con- 


i 


Fenn  /'.  Holme.  669 

tradistiiietion  to  those  where  equitable  rights  alone  were  recog- 
nized and  equitable  remedies  administered." 

The  same  doctrine  is  recognized  in  the  case  of  Strother  v.  Lucas. 
in  6  Peters,  pp.  768.  76ii  of  the  volume,  and  in  the  case  of  Parish  v. 
Ellin,  16  Peters,  pp.  453,  454.  .So,  too,  as  late  as  the  year  l^')(). 
in  the  case  of  Bennetl  v.  Batterv-ortli,  reported  in  the  llth  iA' 
Howard,  669,  the  Chief  Justice  thus  states  the  laAv  as  applical)le 
to  the  question  before  us  : 

•'The  common  law  has  l)een  adopted  in  Texas,  but  the  forms 
and  rules  of  pleading  in  common-law  cases  have  been  abolished, 
and  the  parties  are  at  liberty  to  set  out  their  resi^ective  claims 
and  defences  in  any  form  that  will  bring  them  before  the  court ; 
and.  as  there  is  no  distinction  in  its  courts  between  cases  at  law 
and  in  equitj'.  it  has  been  insisted  in  this  case  on  behalf  of  the 
defendant  in  error  that  this  court  rasij  regard  the  plaintiffs  peti-- 
tion  either  as  a  declaration  at  law  or  a  bill  in  equity.  Whatever 
may  be  the  laws  of  Texas  in  tiiis  respect,  they  do  not  govern 
the  proceedings  in  the  courts  of  the  United  States  ;  and,  although 
the  forms  of  proceedings  and  practice  in  the  State  courts  have 
lieen  adopted  in  the  district  court,  yet  the  adoption  of  the  State 
practice  must  not  be  understood  as  confounding  the  principles  of 
law  and  equity,  nor  as  authorizing  legal  and  equitable  claims  to 
be  blended  together  in  one  suit.  The  constitution  of  the  United 
States,  in  creating  and  defining  the  judicial  power  of  the  general 
government,  establishes  this  distinction  between  law  and  equity, 
and  a  party  who  claims  a  legal  title  must  proceed  at  law,  and  may 
undoubtedly  proceed  according  to  the  forms  of  practice  in  such 
cases  in  the  State  court ;  but  if  the  claim  be  an  equitable  one,  he 
must  proceed  according  to  the  rules  which  this  court  has  pre- 
scribed regulating  proceedings  in  equity  in  the  courts  of  the 
United  States." 

The  authorities  above  cited  are  deemed  decisive  against  the 
right  of  the  plaintiff  in  the  court  below  to  a  recovery  upon  the 
facts  disclosed  in  this  record,  which  show  that  the  action  in  that 
court  was  instituted  upon  an  equitable  and  not  upon  a  legal  title. 
Witli  the  attempt  to  locate  O'CarroU's  New  ]\Iadrid  warrant  No. 
150.  in  addition  to  its  interference  with  what  was  called  the  St. 
Louis  common,  there  were  opposed  five  conflicting  surveys.  In 
consequence  of  this  state  of  facts  the  Commissioner  of  the  General 
Land  Office,  on  the  19th  of  March,  1847,  addressed  to  the  surve3'or 
general  of  INIissouri  the  following  instructions  : 


670  Fenn  v.  Holme. 

''If.  on  exaininntiou,  it  should  satisfactorily  api)ear  to  you  that 
the  lands  embraced  by  said  surveys  were  at  the  date  of  O' Carroll's 
location  reserved  for  said  claims,  the  O'Carroll  location  must  yield 
to  them,  because  such  land  is  interdicted  under  the  New  Madrid 
act  of  17th  of  February,  1815;  but  if,  at  the  time  of  location, 
either  of  the  tracts  was  not  reserved,  but  was  such  land  as  was 
authorized  by  the  New  Madrid  act  to  be  located,  the  New  Madrid 
claim  No.  105  will  of  course  hold  valid  against  either  tract  in  this 
category.  The  fact  on  this  point  can  be  best  determined  by  the 
surve.yor  general  from  the  records  of  his  office,  aided  by  those  of 
the  recorder.  If  there  be  no  valid  claim  to  any  portion  of  the 
residue  of  the  O'Carroll  claim,  and  such  residue  was  such  land 
as  was  allowed  by  the  New  Madrid  act  of  17th  of  February,  1815. 
to  be  located,  on  the  return  here  of  a  proper  plat  and  patent  cer- 
tificate for  said  residue  a  patent  will  issue." 

At  this  point  the  entire  action  of  the  land  department  of  the 
government  terminated.  No  act  is  shown  by  which  the  extent  of 
the  St.  Louis  common,  said  to  be  paramount,  was  ascertained; 
no  information  supplied  with  respect  to  the  validity  or  extent  of 
the  conflicting  surveys,  as  called  for  by  the  commissioner ;  no 
plat  or  patent  certificate,  either  for  the  whole  of  the  warrant  or 
for  any  residue  to  be  claimed  thereupon,  ever  returned  to  the 
General  Land  Office,  and  no  patent  issued.  The  plaintiff  in  the 
circuit  court  founded  his  claim  exclusively  and  solely  upon  the 
New  INIadrid  warrant. 

The  inquiry  then  presents  itself  as  to  who  liolds  the  legal  title 
to  the  land  in  question.  The  answer  to  this  question  is,  that  the 
title  remains  in  the  original  owner,  the  government,  until  it  is 
invested  by  the  government  in  its  grantee.  This  results  from  the 
nature  of  the  case,  and  is  the  rule  affirmed  by  this  court  in  the 
case  of  Bugnd  et  al.  v.  Broderick,  in  which  it  is  declared,  "that 
Congress  has  the  sole  power  to  declare  the  dignity  and  effect  of 
titles  emanating  from  the  United  States,  and  the  whole  legisla- 
tion of  the  government  in  reference  to  the  public  lands  declares 
the  patent  to  be  the  superior  and  conclusive  evidence  of  the  legal 
title.  Until  it  issues  the  fee  is  in  the  government,  which  by  the 
patent  passes  to  the  grantee,  and  he  is  entitled  to  enforce  the 
possession  in  ejectment.     (13  Peters,  p.  436.) 

A  practice  has  prevailed  in  some  of  the  States  (and  amongst 
them  the  State  of  jNIissouri)  of  permitting  the  action  of  ejectment 
to  be  maintained   upon  warrants  for  land,  and  upon  other  titles 


Ross  V.  Barland.  671 

not  comi)lete  or  leual  in  their  character ;  but  this  jn'actice,  as  was 
so  explicitly  ruled  in  the  case  of  Bennett  v.  Buttericorth,  11  How., 
can  in  nowise  affect  the  jurisdiction  of  the  courts  of  the  United 
States,  who,  both  by  the  constitution  and  by  the  acts  of  Congress, 
are  required  to  observe  the  distinction  between  legal  and  equitable 
rights,  and  to  enforce  the  rules  and  principles  of  decision  appro- 
priate to  each. 

The  judgment  of  the  circuit  court  is  to  be  reversed  vith  costs. 


Allison  Ross,  plaintiff  in  error,  v.  John  Doe,  on  the  demise  of 
Adam  Barland  and  others. 

January  Term.  1828. — 1  Peters,  655  ;  7  Curtis,  752. 

if  both  parties  assert  title  under  an  act  of  Congress,  this  court  has  juris- 
diction under  the  '25th  section  of  the  Judiciary  Act.  (1  Stats,  at 
Large,  85.) 

If  it  be  the  established  practice  of  the  courts  of  a  State,  in  an  action  of 
ejectment,  to  look  behind  the  patent  and  examine  into  ihe  validity 
of  the  progressive  stages  of  the  title,  this  court,  on  a  writ  of  error 
under  the  25th  section  of  the  Judiciary  Act,  cannot  examine  the  cor- 
rectness of  that  practice. 

A  donation  certificate,  under  the  act  of  March  :i,  ISOH,  (2  Stats,  at  Large, 
229),  gives  a  title  superior  to  that  acquired  by  a  purchase  at  a  public 
land  sale. 

No  particular  form  of  such  certificate  is  required  ;  it  is  surticient  if  it 
shows  the  occupancy  required  by  tlie  act,  and  wliat  land  granted. 

The  commissioners  under  the  act  of  1808,  were  empowered  to  hear  evi- 
dence, as  to  tlie  time  of  the  evacuation  by  the  Spanish  troops,  and 
to  decide  on  tlie  fact. 

The  case  is  stated  in  the  opinion  of  the  court. 
Wirt  (attoi*ney  general)  for  the  plaintiff  in  error. 
Coxe  for  the  defendants. 

Trimble,  J.,  delivered  the  opinion  of  the  court. 

This  was  an  action  of  ejectment  originally  instituted  in  a  cir- 
cuit court  of  the  State  of  Mississippi. 

Upon  the  trial  of  the  cause,  in  the  court  of  original  jurisdiction, 
the  defendant  excepted  to  the  opinion  of  the  court  in  overruling 
instructions  moved  on  his  part  to  be  given  to  the  jury,  and  also 
to  the  instructions  given  by  the  court  at  the  trial  of  the  cause. 

In  the  bill  of  exceptions  tendered  bj^  the  plaintiff  in  error  in 


672  Ross  V.  Barland. 

the  court  lielow  are  inserted  tlie  titles  of  the  parties  to  the  laud 
in  controversy,  and  the  facts  upon  which  tlie  questions  of  law 
arise,  wliich  were  decided  by  the  court.  A  verdict  and  judgment 
w^ere  rendered  against  the  defendant,  from  which  he  appealed  to 
the  Su})reme  Court  of  the  State,  being  the  highest  court  of  law 
therein,  where  the  judgment  was  affirmed,  and  the  case  is  now 
brought  before  this  court  by  writ  of  error  to  the  Supreme  Court  of 
the  State. 

The  material  facts  of  the  case  are  the  following  :  The  lessors 
of  the  plaintiffs  in  the  action  of  ejectment  claimed  the  land  in 
controversy  under  and  by  virtue  of  a  patent  from  the  United 
States,  dated  the  13th  day  of  October,  1820.  which  was  given  in 
evidence.  This  patent  emanated  upon  a  certificate  of  the  board 
of  commissioners  west  of  Pearl  river,  organized  under  the  pro- 
visions of  the  act  of  Congress  of  the  3rd  of  March,  1803,  entitled 
"An  act  regulating  the  grants  of  lands,  and  providing  for  the  dis- 
posal of  the  lands  of  the  United  States,  south  of  the  State  of  Ten- 
nessee," which  certificate  was  also  given  in  evidence,  and  bears 
date  the  13th  day  of  February,  1807.  The  important  parts  of  the 
certificate  are  in  the  following  words,  to  wit :  "  Joseph  White  claims 
a  tract  of  six  hundred  and  forty  acres  of  land,  situated  in  Clai- 
borne county,  on  the  waters  of  Bayou  Pierre,  b}^  virtue  of  the 
occupancy  of  the  claimant  on  and  before  the  30th  day  of  ]\Iarch. 
in  the  year  one  thousand  seven  hundred  and  ninet3'-eight.  AVe 
certify  that  the  said  Joseph  White  is  entitled  to  a  patent  therefor 
from  the  United  States  by  virtue  of  the  recited  act." 

The  defendant  claimed  and  held  possession  of  the  laud  under 
and  by  virtue  of  a  patent  from  the  United  States,  dated  the  12th 
day  of  August,  1819,  for  553  acres  of  land.  This  patent  is  founded 
upon  a  purchase  at  the  general  sale  of  the  lands  of  the  United 
States,  at  Washington,  Mississippi,  under  the  authority,  of  the 
before  recited  act  of  Congress. 

Upon  this  state  of  facts  the  counsel  for  the  defendant  moved 
the  court  to  instruct  the  jury  :  •'  That  in  such  a  case  tlie  older 
patent  of  the  defendant,  under  which  he  claimed  possession, 
should  prevail  in  the  action  of  ejectment  in  a  court  of  law  against 
the  said  junior  patent  of  the  plaintiff,  although  the  said  junior 
patent  of  the  plaintiflT  emanated  upon  a  prior  certificate  of  the 
board  of  commissioners  west  of  Pearl  river  ;  but  the  court  refused 
to  give  such  instructions  in  point  of  law  to  the  jury,  but,  on  the 
contrary,  instructed  them  that  the  junior  patent  of  the  said  plain_ 


Ross  V.  Barland.  673 

tift".  emanatint;:  upon  a  certificate  of  a  donation  claim  prior  in 
date  to  the  patent  under  which  the  defendants  claims,  would  over- 
reach the  patent  of  the  defendant,  and  in  point  of  law  shonld  pre- 
vail against  such  prior  patent  of  the  defendant.*" 

These  opinions  havino-  been  affirmed  upon  ai)peal  to  the  Supreme 
Court  of  the  State,  the  oliject  of  this  writ  of  error  is  to  havf  tliem 
reviewed  in  this  court. 

It  has  been  objected  that  this  court  Ijas  not  jurisdiction  of  the 
case.  By  the  2d  section  of  the  3d  article  of  the  constitution  it  is 
declared  "that  the  judicial  power  shall  extend  to  all  cases  arisina; 
under  this  constitution,  the  laws  of  the  United  States,  and  treaties 
made  or  to  be  made  under  their  authority.'"  &c.  By  the  25th 
section  of  the  Judiciary  Act  of  1789.  made  in  pursuance  of  this 
provision  of  the  constitution,  it  is  enacted,  --tliat  a  final  judgment 
or  decree  in  any  suit  in  the  highest  court  of  law  or  equity  of  a 
State  in  which  a  decision  in  the  suit  could  be  had,  where  is  drawn 
in  question  the  construction  of  any  statute  of  the  United  States, 
and  the  decision  is  against  the  title  or  right,  &c.,  specially  set  up 
or  claimed  by  either  party.  &c.,  under  such  statute,  &c..  may  be 
re-examined  and  reversed  or  affirmed  by  tlie  Supreme  Court  of 
the  United  States  upon  a  writ  of  error."" 

In  this  case,  the  titles  of  both  parties  are  derived  under  an 
act  of  Congress  :  the  construction  of  the  statute  is  drawn  directly 
in  question  :  and  the  decision  of  the  highest  court  of  law  of  the 
State  is  against  title  and  right  of  the  party  sjiecially  set  up  in  his 
defence  under  the  statute.  This  case  is  not  distinguishable  from 
the  case  of  Mattheivs  v.  Zan(\  4  C.  382.  in  which  the  jurisdiction 
of  this  court  was  maintained. 

For  the  plaintiff  in  error,  it  is  argued  that  the  State  court  erred 
in  deciding  that  the  elder  grant  should  not  prevail  in  the  action 
of  ejectment. 

It  is  undoubtedly  true  that,  upon  common  law  principles,  the 
legal  title  should  prevail  in  the  action  of  ejectment,  upon  the  same 
grounds  tliat  the  legal  right  prevails  in  other  actions  in  courts  of 
law.  It  is  so  held  in  those  States  in  which  the  principles  of  the 
common  law  are  carried  into  full  effect,  and  the  course  of  pro- 
ceeding in  the  action  of  ejectment  are  according  to  those  i)rinciples. 
In  the  States  where  these  principles  prevail,  it  is  held  that  in  a 
trial  at  law  the  courts  will  not  look  behind  or  beyond  a  grant  to 
the  rights  upon  which  it  is  founded  ;  nor  examine  the  progressive 
stages  of  the  title  antecedent  to  the  grant. 

43 


674  Ross  V.  Earland. 

lint  ill  other  States,  tlie  courts  of  law  proceed  upon  other  prin- 
ciples. In  the  action  of  ejectment,  they  look  beyond  the  grant, 
and  examine  the  progressive  stages  of  the  title  from  its  incipient 
state,  whether  by  warrant,  survey,  entry,  or  certificate,  until  its 
final  consummation  by  grant ;  and  if  found  regular  and  according 
to  law  in  these  progressive  stages,  the  grant  is  held  to  relate  back 
to  the  inception  of  the  right,  and  to  have  dignity  accordingly. 

This  latter  coarse  seems  to  be  the  one  adopted  and  pursued  by 
the  courts  of  Mississippi.  It  is  enough  for  us  to  say  that  in  so 
doing,  and  in  applying  their  peculiar  mode  of  proceeding  to  titles 
derived  through  and  under  the  laws  of  the  United  States,  they 
violated  no  provisions  of  any  statute  of  the  United  States. 

The  important  question  in  the  case  is  this  :  In  applying  its 
own  principles  and  practice  in  the  action  of  ejectment,  as  might 
well  be  done  to  this  case,  has  this  court  misconstrued  the  act  of 
Congress,  in  deciding  that  the  grant  of  the  plaintiff,  emanating 
upon  the  donation  certificate  of  the  board  of  commissioners,  west 
of  Pearl  river,  set  forth  in  the  record,  would  overreach  the 
defendant's  grant,  and  should  prevail  against  it  in  the  action  of 
ejectment  ? 

This  draws  in  question  the  construction  of  the  act  of  Congress 
of  1803,  and  gives  this  court  jurisdiction  of  the  case.  It  is  well 
known  that,  prior  to  the  treaty  of  San  Lorenzo  of  the  27th  of 
October,  179.5  (8  Stats,  at  Large,  138),  controversies  had  long 
existed  between  the  United  States  and  his  Catholic  Majesty,  on 
the  subject  of  the  boundaries  which  separated  the  United  States 
and  the  Spanish  provinces  of  East  and  West  Florida. 

The  second  article  of  that  treaty  declares  "  that  the  southern 
boundary  of  the  United  States,  which  divides  their  territory  from 
the  Spanish  colonies  of  East  and  West  Florida,  shall  be  designated 
by  a  line  beginning  on  the  Mississippi  river,  at  the  northernmost 
part  of  the  thirty -first  degree  of  latitude  north  of  the  equator, 
which,  from  thence,  shall  be  drawn  due  east  to  the  middle  of  the 
river  Appalachicola,"  &c.  And  it  is  agreed,  that  if  there  should 
be  any  troops,  garrisons,  or  settlements  of  either  party  in  the 
territory  of  the  other,  according  to  the  above-mentioned  boun- 
daries, they  should  be  withdrawn  from  the  said  territory  within 
the  term  of  six  months  after  the  ratification  of  this  treaty,  or 
sooner  if  it  be  possible. 

It  is  matter  of  public  history  that  there  were  Spanish  troops, 
garrisons,  and  settlements  north  of  this  boundary,  and  within  the 


i 


Ross  V.  Barland.  675 

territoiy  of  the  United  States,  which  were  not  withdrawn  till  lonc^j 
after  the  time  stipulated  by  the  treaty. 

By  the  2d  section  of  the  before-recited  act  of  Congress  of  the 
3d  of  jMarch,  1803,  it  is  enacted  "that  to  every  person,  or  to  the 
legal  representative  or  representatives  of  every  person,  who,  either 
being  the  head  of  a  family  or  of  twenty-one  years  of  age,  did,  on 
that  day  of  the  year  1797,  when  the  Mississippi  territory  was 
finally  evacuated  by  the  Spanish  troops,  actually  inhabit  and  culti, 
vate  a  tract  of  land  in  the  said  territory,  &c.,  the  said  tract  of 
land  thus  inhabited  and  cultivated,  shall  be  granted  ;  provided- 
however,  that  not  more  than  one  tract  shall  be  thus  granted  to 
an}'  one  person,  and  the  same  shall  not  contain  more  than  640 
acres  ;  and  provided  that  this  donation  shall  not  be  made  to  any 
person  who  claims  any  other  tract  of  land  in  the  said  territory, 
by  virtue  of  any  British  or  Spanish  grant  or  order  of  survej'." 

The  6th  section  of  the  act  provides  for  the  establishment  of 
two  boards  of  commissioners,  one  east  and  the  other  west  of 
Pearl  river,  in  said  territory  "  for  the  purpose  of  ascertaining  the 
rights  of  persons  claiming  the  benefit  of  the  articles  of  agreement 
and  cession  between  the  United  States  and  the  State  of  Georgia, 
or  of  the  first  three  sections  of  this  act.  And  each  board,  or  a 
majority  of  each  board,  shall,  in  their  respective  districts,  have 
power  to  hear  and  decide  in  a  summary  manner  all  matters 
respecting  such  claims  ;  also  to  administer  oaths  and  examine 
witnesses,  and  such  other  testimony  as  ma}^  be  adduced,  and  to 
determine  thereon  according  to  justice  and  equity  ;  which  deter- 
mination, so  far  as  relates  to  any  rights  derived  from  the  articles 
of  agreement  aforesaid,  or  from  the  first  three  sections  of  this 
act,  shall  be  final." 

The  11th  section  provides  "that  the  lands  for  which  certificates 
of  any  description  whatsoever  shall  have  been  granted  b\^  the  com- 
missioners, in  pursuance  of  the  provisions  of  this  act,  shall,  as 
soon  as  may  be,  be  surveyed.  And  the  said  surveyor  shall  cause 
all  the  other  lands  of  the  United  States  in  the  Mississippi  terri- 
tory to  be  surveyed." 

And  the  12th  section  provides  that  all  the  lands  aforesaid,  not 
otherwise  disposed  of  or  accepted,  by  virtue  of  the  provisions  of 
the  preceding  sections  of  this  act,  shall  (with  certain  other  reser- 
vations and  exceptions)  he  offered  for  sale. 

As  such  lands  only  were  authorized  to  be  offered  for  sale  as 
had  not  been  appropriated  by  the  previous  sections  of  the  law. 


676  Ross  ?'.  Barland. 

and  eertilicates  granted  by  the  conuaissioners  in  pursnance  thereof, 
it  follows,  incontestably.  that  the  right  of  the  plaintiff  in  the 
ejectment,  derived  from  a  donation  certificate,  is  superior  to  that 
of  the  defendant  derived  from  n  purchase  at  the  sales,  unless 
there  is  some  fatal  infirmitv  in  the  certificate  which  renders  it 
void.  This  has  not  been  contested. 
But  it  is  objected  to  this  certificate — 

1.  That  it  is  not  a  donation  certificate. 

2.  That  it  is  not  sufficient!}^  precise,  and  does  not  aver  all  the 
facts  necessary  to  authorize  the  commissioners  to  grant  a  certifi- 
cate. 

3.  The  period  of  occupancy  is  alleged  to  be  March  30,  1798. 
The  answer  to  the  first  objection  is,  that  the  certificate  is  granted 

for  640  acres  of  laud,  the  precise  quantity  for  which  a  donation 
certificate  was  authorized. 

This  is  sufficent  evidence  of  tlie  intention  of  the  board  of  com- 
missioners to  grant  a  donation  certificate.  The  period  of  occu- 
pancy, too,  fits  the  case  of  a  donation  certificate  or  none,  and, 
if  necessary,  fortifies  the  conclusion  of  its  being  granted  as  a 
donation  certificate. 

To  the  second  objection,  it  may  l)e  answered  that  the  law 
re(iuires  no  precise  form  in  the  certificate.  It  is  sufficient,  if  the 
proofs  be  exhibited  to  the  board  of  commissioners,  to  satisfy 
them  of  the  facts  entitling  the  party  to  the  certificate.  The  facts 
need  not  be  spread  upon  the  record.  It  is  sufficient  if  the  con- 
sideration, to-wit,  the  occupany.  and  the  quantity  granted,  appear. 

Nothing  more  is  necessary  to  certify  to  the  government  of  the 
part3'^'s  right,  or  to  enable  him.  after  it  is  surveyed  l)y  the  proper 
officer,  to  obtain  a  patent. 

The  objection  that  the  occupancy  is  stated  to  be  on  the  30th  of 
March,  1798,  produces  moi-e  difficulty. 

The  language  of  the  second  section  of  the  act  of  Congress. 
authorizing  these  donation  claims,  is,  that  the  persons  who,  on 
that  day  of  the  year  1797,  when  the  Mississippi  territory  was 
finally  evacuated  by  the  Spanish  troops,  &c. 

This  language  is  very  peculiar,  and  shows  plainly  that,  although 
Congress,  at' the  time  of  passing  the  law.  ^^as  certain  of  the  fact 
of  evacuation  by  the  Spanish  troops,  that  body  was  not  informed 
of  the  precise  time  when  the  evacuation  took  place. 

The  law  was  intended  to  confer  a  bount}^  on  a  numerous  class 
of  individuals,  and,  in  construing  the  ambisfuous  words  of  the  sec- 


Ross  V.  l^ARLAND.  677 

lion,  it  is  tiie  duty  of  the  court  to  ailopt  that  coiistriu'tion   wliich 
will  best  etfect  the  liberal  intentions  of  the  legislature. 

To  interpret  this  section  literally,  that  land  should  be  granted 
to  those  who.  on  the  same  day  of  tlie  year  1797,  occupied  a  tract 
of  land,  provided  the  Spanish  troops  finally  evacuated  the  terri- 
tory, and  on  that  very  day  of  that  very  year  1707.  would  totallj'' 
defeat  the  operation  of  the  law.  and  tlie  bounty  intended  by  it,  if 
it  should  have  happened  that  the  final  evacuation  of  the  territory 
b^-  the  Spanish  troops,  took  place  on  the  first  da}'^  of  .lanuary, 
1798,  or  on  any  subsequent  day. 

If  an  individual  had  inhabited  and  cultivated  a  tract  of  land 
every  day  in  the  year  1797,  still,  according  to  the  letter  of  this 
section,  he  was  not  efititled  to  the  bounty  of  tlie  government, 
because  the  Spanish  troops  had  not  evacuated  the  territory  any 
da)'  of  that  j^ear.  but  some  day  of  the  next  year :  ^nd,  although 
the  party  continued  to  occupy  the  land  until  the  da}-  of  the  actual 
evacuation,  still,  he  could  not  be  entitled,  according  to  the  letter 
of  the  act,  because  that  day  was  not  any  da};-  of  the  year  1797. 

This  could  not  be  the  intention  of  Congress.  The  country  had 
been  settled  dui-ing  the  conflict  on  the  subject  of  boundaries 
between  Spain  and  the  United  States,  by  the  citizens  and  sub- 
jects of  both  governments.  It  was  a  weak  and  exposed  frontier 
of  the  United  States. 

The  manifest  general  intent  of  the  act  of  Congress  is  to  confer 
a  bounty  upon  the  inhabitants  and  cultivators  of  the  soil,  who 
elected  to  remain  in  the  country  at  the  time  of  the  actual  evacua- 
tion by  the  Spanish  troops.  In  this  view  of  the  subject,  the  time 
of  the  actual  evacuation  was  very  important,  but  whether  it  was 
on  some  day  in  the  year  1797  or  1798.  was  comparatively  unim- 
portant. 4{ 

If  the  fact  be  supposed,  and  it  mustiit  supposed  for  the  sake 
of  the  argument,  that  the  actual  evacuation  took  place  on  tlie 
80th  of  March,  1798,  then  something  must  be  rejected  in  the  con- 
struction and  interpretation  of  the  act  of  Congress  to  make  the 
provisions  of  the  law  effectual.  Either  the  words  "of  the  year 
1797"'  must  be  rejected  as  inconsistent  with  the  main  scope  and 
general  intent  of  the  law,  or  the  claims  to  donations  of  all  the 
inhabitants  and  cultivators,  west  of  Pearl  river,  must  be  defeated. 
This  would  but  defeat  the  manifest  general  intent  of  the  law. 

It  was  said  at  the  ])ar  that  all  the  donation  certificates,  west  of 
tlie  Pearl  river,  express  to  be  for  occupancy  on  the  30th  dav  of 


678  Ross  V.  Barland. 

March,  1798,  and  a  certificate  from  the  Commissioner  of  the 
General  Land  Office,  to  that  effect,  was  produced.  It  is  not  neces- 
sary to  decide  whether  we  can  or  cannot  notice  this  certificate  as 
evidence  of  the  fact  tliat  the  evacuation  took  place  on  that  day,  or 
as  evidence  of  the  construction  given  by  the  board  of  commis- 
sioners west  of  Pearl  river.  It  is  sufficient  if  they  were  author- 
ized to  give  such  construction  to  the  act,  in  the  event  supposed, 
that  the  event  happened,  or  in  other  words,  that  the  actual  evacua- 
tion took  place  on  the  30th  of  March,  1798,  as  supposed  in  the 
argument ;  and  that  the  construction  of  the  2d  section  of  the  act 
of  Congress,  which  we  are  disposed  to  adopt,  is  the  true  construc- 
tion in  the  estimate  of  Congress  itself,  we  think  may  fairly  be  - 
inferred  from  the  act  of  Congress  of  the  •2lst  of  April.  1808.  (2 
Stats,  at  Large.  400.)  The  4th  section  of  that  act  provides  that, 
"wherever  it  shall  appear,  to  the  satisfaction  of  the  register  and 
receiver  of  the  district  east  of  Pearl  river,  that  the  settlement  and 
occupancy,  by  virtue  of  which  a  pre-emption  certificate  had  been 
granted  by  the  commissioners,  had  b^n  made  and  taken  place 
prior  to  the  30th  of  March,  1798,  they  shall  be  authorized  to  grant 
to  the  party  a  donation  certificate,  in  lieu  of  such  pre-emption." 

It  appears  from  this  section  that  the  commissioners  east  of  Pearl 
river  had  adopted  the  construction  of  the  act  of  1803.  contended 
for  by  the  plaintiff  in  error,  and  that  instead  of  granting  donation 
certificates  to  the  inhabitants  and  settlers,  down  to  the  period  of 
the  30th  of  March,  1798,  under  the  second  section  of  the  act.  they 
had  granted  pre-emption  certificates  under  the  provision  of  the  3d 
section.  Congress  treats  this  as  a  mistaken  construction  of  the 
law,  by  directing  donation  certificates  to  he  made  out  in  lieu  of 
the  pre-emption  certificates. 

The  act  of  1803  puts  tlje  settlers  east  and  west  of  Pearl  river 
on  precisely  the  same  fottfing ;  and  it  is  inconceivable  that  Con- 
gress could  have  any  motive  for  giving  those  east  of  Pearl  river 
any  preference  by  the  act  of  1806,  or  that  the  act  could  have  any 
other  object  than  to  continue  upon  the  same  footing  the  settlers 
east  and  west  of  Pearl  river. 

The  certificate  granted  in  the  case  before  us  is  sufficient  evi- 
dence that  the  commissioners  west  of  Pearl  river  adopted  a  more 
liberal  construction,  such  as  we  think  they  were  warranted  in  adopt- 
ing, and  such  as  we  think  is  manifestly  sanctioned  by  Congress  in 
the  act  of  1806. 

It  is  the  opinion  of  this  court  that  the  commissioners  were  author- 


O'Brien  v.  Perry.  679 

ized  to  hear  evidence  as  to  the  time  of  the  actual  evacuation  of  the 
territory  by  Sjianish  troops,  and  to  decide  upon  the  facts.  The 
law  gave  them  -  power  to  hear  and  decide  all  matters  respecting 
sucli  claims,  and  to  determine  thereon  according  to  justice  and  to 
equity,"  and  declares  their  determination  shall  be  final. 

We  are  bound  to  presume  that  everj'  fact  necessary  to  warrant 
the  certificate,  in  the  terms  of  it,  was  proved  before  the  commis- 
sioners ;  and  that,  consequently,  it  was  shown  to  them,  and  the 
final  evacuation  of  the  territory  by  tlie  Spanish  troops  took  place 
on  March  30th,  1798. 

Upon  the  whole,  it  is  the  unanimous  opinion  of  this  court  that 
the  Supreme  Court  of  the  State  of  Mississippi  has  not  miscon- 
strued the  act  of  Congress,  from  which  the  rights  of  the  parties 
are  derived,  and  that  the  judgment  of  the  supreme  court  be — 

Affirmed. 


John  O'Brien,  plaintiff  in   error,   r.  P^liza   M.   Perry. 

December  'J'erm.  IStil.— 1  Black.  132  ;  4  Miller,  397. 

3fis.soun  Land  Law. 

1.  Under  the  3d  section  of  the  act  of  1^32,  and  the  supplementary  act 

of  March  2,  1833,  concerning  Mis:^ouri  land  titles,  a  claimant  under 
a  Spanish  grant,  who  relinquished  liis  claim,  hail  a  right  to  purchase 
the  land  as  a  pre-emptor.  at  the  minimum  price  of  the  public  lands, 
whether  an  actual  settler  on  it  at  that  date  or  not. 

2.  The  fact  that  a  town  lot  had  been  confirmed  to  claimants  under  the 

act  of  1S12,  wliich  was  a  part  of  the  land  claimed  under  the  act  of 
1832.  did  not  invalidate  his  right  to  purchase  under  this  latter  act 
the  whole  tract  of  (i4()  acres. 

3.  J'he  Commissioner  of  the  T.and  Office  erred  in  setting  aside  the  certi- 

ficate of  entry  made  by  tlie  register  and  receiver  to  the  claimant, 
and  in  granting  a  patent  to  another  purchaser  of  the  land. 

4.  While  it  is  true,  as  a  general  j-ule.  that  this  error  can  only  be  corrected 

in  a  suit  in  chancery,  yet  where,  as  in  the  State  courts  of  Missouri, 
law  and  equity  are  blended  in  their  proceedings,  and  a  party  having 
an  equitable  defence  to  an  action  of  ejectment  is  bound  to  set  it  up. 
this  court  will,  on  a  writ  of  error,  affirm  the  judgment  of  the  Supreme 
Court  of  the  State  which  sustains  the  equitable  title. 

Writ  of  error  to  the  Supreme  Court  of  the  State  of  Missouri. 
The  facts  are  well  stated  in  the  opinion. 


680  O'Brien  v.  Ferry. 

Mr.  Neill  for  plaintilf  in  error. 
No  appearance  for  defendant. 

Mk.  JrsTKK  Nej.son  delivered  the  opinion  of  the  court. 

This  action  was  brouoht  by  the  plaintiff.  O'Brien,  to  recover 
possession  of  a  part  of  section  fifteen,  in  township  thirty-seven. 
Me  claimed  title  under  a  patent  of  the  United  States,  dated  May 
4,  18.^4,  which  was  founded  upon  a  i)re-eniption  certificate  under 
the  act  of  1841,  dated  July  3,  1847.  His  possession  or  settle- 
ment began  in  April  the  same  year. 

The  title  which  the  defendants  set  up  began  as  early  as  179.5, 
under  Basil  Valle,  who  settled  upon  the  premises,  which  were 
situate  at  a  place  called  Mine  au  Breton,  in  Missouri,  and  con- 
tinued cultivating  and  improving  the  same  down  to  the  year  1806, 
when  he  sold  and  conveyed  all  his  interest  to  John  Perr}',  the 
ancestor  of  the  defendants.  In  1807,  Perry,  as  assignee  of  Yalle, 
presented  the  claim  before  the  board  of  .commissioners,  enlarging 
it  to  six  hundred  and  thirty-nine  acresb-  No  decision  seems  to 
have  been  made  upon  the  claim  till  the  meeting  of  the  board  in 
1811.  when  it  was  rejected. 

In  1825.  William  and  John  Perry,  who  had  become  the  owners 
of  the  claim,  had  confirmed  to  them  a  town  lot  and  out-lot  of  the 
village  of  Mine  au  Breton,  lying  within  and  constituting  a  part 
of  the  original  tract  of  six  hundred  and  thirty-nine  acres,  under 
the  act  of  1812  and  the  supplemental  act  of  1824.  The  dwelling- 
house  of  the  Perry's  was  situate  on  this  village  lot. 

In  183,3  the  claim  was  again  presented  to  the  board  of  com- 
missioners, under  the  act  of  1832  and  the  supplemental  act  of 
1833.  and  further  proof  in  support  of  it  produced.  No  decision 
was  made  b}'  the  commissioners. 

In  August,  1834,  John  Perr3\  Jr..  who  was  then  the  owner, 
relinquished  all  right  and  title  to  the  claim,  by  metes  and 
bounds,  including  the  whole  tract  of  six  hundred  and  thirty-nine 
acres,  to.  the  United  States,  and  afterwards  applied  to  the  register 
and  receiver  to  make  his  entry  as  purchaser  of  the  tract  under 
the  act  of  1832,  which  was  permitted  on  the  26th  of  November, 
1839,  satisfactor}'^  proof  of  possession,  inhabitation,  and  cultiva- 
tion having  been  furnished  and  the  purchase-money  paid.  This 
entry  was  made  under  the  direction  of  Whitcomb,  the  commis- 
sioner of  the  land  office  ;  but  on  api^eal  to  his  successor  by  adverse 
claimants  the  entry  was  canceled  on  the  5th  of  May,  1843,  three 


O'Brien  v.  Perry.  681 

years  and  a  lialf  after  Perry's  entry,  and  which  decision  was  con- 
curred  in  by  the  then  Secretary  of  the  Treasury. 

Subsequently,  in  1847,  as  we  have  seen,  the  plaintiff  O'Brien 
was  permitted  to  make  an  entry  for  a  part  of  tlie  same  premises, 
and  in  1854  a  patent  was  issued  to  him. 

Upon  this  state  of  the  case  and  condition  of  tlie  title  the  court 
below  held  that,  by  virtiie  of  the  waiver  and  relinfjuislnnent  of  his 
claim  under  the  act  of  1832,  Perry  became  thereby  entitled  to  a 
pre-emption  of  the  land  relinquished,  and  that  the  subsequent 
cancellation  of  his  entry  b}-  the  commissioner  was  contrary  to 
law  and  void. 

By  the  first  section  of  the  act  of  1832,  a  board  of  commissioners 
was  appointed  to  examine  all  unconfirmed  claims  to  land  in  the 
State  of  Missouri,  theretofore  filed  in  the  office  of  a  recorder, 
founded  upon  incomplete  grants,  &c,,  under  the  authoritj^  of 
France  or  Spain,  prior  to  the  10th  March,  1804,  and  to  class 
the  same  so  as  to  show  :  1.  what  claims,  in  their  opinion,  would 
have  been  confirmed  according  to  the  laws,  usages,  and  customs 
of  the  Spanish  government  and  the  practice  of  the  Spanish  authori- 
ties, if  the  government  under  which  the  claims  originated  had 
continued  in  Missouri ;  and  2.  what  claims,  in  their  opinion,  are 
destitute  of  merit  in  law  or  equity  under  such  laws,  usages,  and 
customs  and  practice  of  the  Spanish  authorities. 

The  third  section  provided  that,  from  and  after  the  final  report 
of  the  board  of  commissioners,  the  lands  contained  in  the  second 
class  should  be  subject  to  sale  as  other  public  lands,  and  the  lands 
contained  in  the  first  class  should  continue  to  be  reserved  from 
sale  as  theretofore,  until  the  decision  of  Congress  upon  them  pro- 
vided that  actual  settlers,  being  housekeepers  upon  such  lands  as 
are  rejected,  claiming  to  hold  under  such  rejected  claim,  or  such 
as  -may  waive  their  grant,  shall  have  the  right  of  pre-emption  to 
enter  within  the  time  of  the  existence  of  this  act,  not  exceeding 
the  quantity  of  their  claim,  and  which  in  no  case  shall  exceed 
six  hundred  and  forty  acres,  including  their  improvements. 

And  it  is  made  the  duty  of  the  Secretary  of  the  Treasury  to 
forward  to  the  several  land  offices  in  said  State,  the  manner  in 
which  all  those  who  may  wish  to  waive  their  several  grants  or 
claims,  and  avail  themselves  of  the  right  of  pre-emption,  shall 
renounce  or  relinquish  their  said  grants. 

In  the  instructions  to  the  board  of  commissioners  b}'  the  Com- 
missioner of  the  General  Land  Office,  under  date  of  2d  of  Xovem- 


682  O'Brien  v.  Perry. 

ber,  1832,  he  observes  that  this  3cl  section  of  the  act  above  recited 
provides  that  actual  settlers,  being  liousekeepers  at  the  date  of 
the  act,  upon  such  claims  alleged  and  filed  in  the  mode  specified 
in  the  first  section,  as  are  rejected,  and  who  claim  to  hold  under 
such  rejected  claim  ;  and  also,  that  all  claimants  who  may  relin- 
quish to  the  government  claims  of  the  characters  designated  in 
the  first  section,  prior  to  an}'^  decision  thereon  by  the  board,  shall 
have  the  right  of  pre-emption.  He  also  directs  that  the  recorder 
fnrnisli  to  the  party  relinquishing  a  certified  copy  of  his  relin- 
quishment, which  shall  be  evidence  of  his  right  to  the  pre-emp- 
tion privilege  intended  to  be  conferred  by  the  act.  Tlie  supple- 
mentary act  of  March  2,  1833,  extended  the  provisions  of  the  act 
of  1832  to  all  claims  for  donations  of  land  in  Missouri,  held  in 
virtue  of  settlement  and  cultivation. 

This  supplementary  act  embraced  the  class  of  claims  to  which 
the  one  in  question  belongs.  As  the  relinquishment  was  made 
by  Perry  in  conformity  with  the  third  section  of  this  act  of  1832 
and  the  instructions  of  the  Secretary  of  the  Treasury,  it  is  diffi- 
cult to  see  an}^  well-founded  objection  to  hi^  right  of  entry  of  the 
land  as  a  pre-emptor,  which  was  permitted  by  the  register  and 
receiver  upon  satisfactory  proof  of  inhabitation  and  cultivation 
on  the  26th  November,  1839.  Indeed,  according  to  the  instruc- 
tions from  the  commissioner  of  the  land  office,  the  certified  copy 
of  the  relinquishment  would  seem  to  be  sufficient  evidence  of  the 
right  of  pre-emption,  even  without  further  proof. 

But  this  entry  was-  canceled  on  the  5th  May,  1843,  by  directions 
of  the  then  commissioner  of  the  land  office,  and  which  raises  the 
principal  question  in  the  case.  As  has  already  appeared,  William 
and  John  Perry,  who  then  owned  the  claim,  had  confirmed  to  them 
in  1825  a  town  lot  and  out-lot  at  the  village  of  Mine  au  Breton, 
embracing  some  eight  or  ten  acres,  under  the  act  of  1812  and 
the  supplementary?^  act  of  1824,  and  which  were  included  within 
this  claim.  The  dwellinghouse  and  outhouses  of  the  Perrys  were 
situated  on  this  town  lot,  and,  indeed,  had  been  thus  situated  since 
the  purchase  from  Basil  Valle  in  1806.  The  commissioner  held 
that,  upon  a  true  construction  of  the  third  section  of  the  act  of  1832 
no  claimant  was  entitled  to  the  right  of  pre-emption  unless  he 
was  an  actual  settler,  being  also  a  housekeeper,  on  the  land  at 
the  date  of  the  act,  and  that  the  condition  applied  as  well  to  the 
party  relinquishing  his  claim  to  the  government  as  to  him  whose 
claim  had  been  rejected  ;  and  as  the  town  lot,  upon  which  stood 


O'Brien  v.  Perry.  683 

the  dwellinghouse  of  the  Perry's,  liad  been  confirmed  under  tlie 
act  of  1812,  he  was  of  opinion  it  became  thereby  separated  from 
the  remaining  portion  of  the  claim,  and  therefore  tiiey  were  not 
settlers  and  housekeepers  on  the  part  entered  in  November,  1839  ; 
and  this  view  being  concurred  in  ])y  the  Secretar^'  of  the  Treasury, 
the  register  and  receiver  were  directed  to  cancel  the  entry  of  the 
Perry  s. 

Now,  assuming  the  construction  of  the  third  section  as  declared 
by  the  land  commissioner  to  be  correct,  and  that  the  Perrys  must 
prove  they  were  actual  settlers  and  housekeepers  on  the  land  at 
the  date  of  the  act,  we  think  the  conclusion  arrived  at  not  at  all 
warranted.  The  confirmation  of  the  title  to  the  town  lot  in  1812 
did  not.  in  any  just  or  legal  sense,  affect  their  claim  to  the  remain- 
ing portion  of  the  land,  or  change  the  character  of  the  settlement 
or  inhabitation.  For  aught  that  appears,  the  occupation  and  claim 
continued  the  same  after  the  confirmation  as  before,  except  that, 
being  secure  in  the  title  to  the  town  lot,  they  were  concerned  only 
in  their  future  efforts  to  obtain  the  title  to  the  other  jDortion  of 
the  land.  The  act  of  1812  was  a  general  act  confirming  town 
lots,  out-lots,  &c.,  to  the  inhabitants  of  villages  :  and  the  argu- 
ment would  seem  to  go  the  length  of  requiring  the  inhabitant  to 
reject  the  confirmation  of  his  village  lot  upon  which  his  dwelling 
stood  or  forfeit  his  right  to  a  confirmation  of  the  adjoining  planta- 
tion, and  of  holding  that  his  entire  claim  could  not  be  confirmed 
in  parts  b}'  two  different  acts. 

But  the  conclusive  answer  to  the  objectioifof  the  commissioner 
is,  that  Perry  was  an  actual  settler  and  housekeeper  on  the  land 
he  relinquished  to  the  government  at  the  date  of  the  act,  as  the 
deed  of  relinquishment  embraced  the  village  lot  and  dwelling 
house  as  well  as  the  other  portion  of  his  claim  ;  and.  although  the 
entry  was  permitted  onlj^  for  the  portion  less  the  town  lot  and  out- 
lot,  this  was  not  the  fault  of  the  claimant,  but  that  of  the  register 
and  receiver,  and  cannot  be  justly  used  to  his  prejudice. 

We  have  thus  far  assumed  that  the  construction  of  the  third 
section  of  the  act  of  1832  by  the  commissioner,  at  the  time  of  the 
cancellation  of  the  entry  of  Perry,  was  correct,  and  have 
endeavored  to  show  that  the  conclusion  arrived  at  upon  his  own 
premises  was  erroneous,  and  afforded  no  justification  for  setting 
aside  the  entry  made  under  the  direction  of  his  predecessor. 

But  this  construction  differed  from  the  instructions  of  the 
department  at  the  time  of  the  passage  of  the  act.  and  which  were 


684  O'Brien  v.  1'erry. 

tui'nished  to  the  land  officers  to  guide  thein  in  its  execution.  As 
we  have  already  said,  that  construction  dispensed  with  the  neces- 
sity of  requiriuiJ-  the  claimant  to  prove  that  he  was  an  actual  set- 
tler and  housekeeper  on  the  land,  in  all  cases  of  claims  pending 
hefore  the  board  of  commissioners  and  undecided.  The  rejected 
claims  were  declared  to  be  public  lands,  from  the  time  of  their 
rejection  by  the  board  ;  and,  of  course,  no  relinquishment  was 
necessary  to  vest  the  title  in  the  government.  The  claimants 
were  then  in  the  condition  of  those  who  had  no  claim  on  the 
bounty  of  the  government,  except  as  actual  settlers  on  the  land, 
which  furnished  a  meritorious  ground  of  right  to  a  pre-emption. 
But  the  case  of  claimants  whose  claims  were  still  under  consider- 
ation and  undetermined  was  altogether  dift'erent.  They  might 
still  be  confirmed  ;  and,  in  that  event,  the  treasury  would  derive 
no  benfit  from  them.  Congress,  therefore,  proposed  to  this  class, 
that  if  they  would  relinquish  their  claims  to  the  government,  they 
should  have  the  right  to  enter  the  lands  at  the  minimum  jjrice,  in 
preference  to  all  others.  This  was  the  iViducement  held  out  to 
them  to  relinquish  their  claims.  The  government  had  no  pecuniary 
interest,  so  far  as  the  pre-emption  right  was  concerned,  after  the 
relinquishment,  whether  given  to  the  claimant  or  to  some  subse- 
quent settler.  The  minimum  price  was  all  it  could  receive  for  the 
land.  The  proposal  was  'a  compromise  offered  to  this  class  of 
claimants.  Actual  settlement  and  housekeeping  on  the  land,  at 
the  time  of  the  passing  of  the  act  of  1832,  were  not  essential 
prerequisites  of  their'claims  before  the  board  as  Spanish  claims; 
they  depended  upon  the  settlement  right,  under  the  act  of  1807. 
and  subsequent  acts  relating  thereto. 

Without  pursuing  this  branch  of  the  case  further,  we  are  entirely 
satisfied  that  the  commissioner  of  the  land  oflice  erred  in  canceling 
the  entry  of  Perry,  made  in  1839,  and  that  it  was  contrary  to  law 
and  void,  as  was  also  the  issuing  of  the  patent  to  O'Brien  upon 
his  subsequent  entry  for  a  part  of  the  same  land  in  1847.  This 
was  so  held  in  Lyfle  v.  The  State  of  Arhittsas  (9  How.,  314),  and 
in  Cunningham  v.  Ashley  (14  Ih..  377) ;  see,  also,  Minter  v.  Croni* 
melin  (18  How.,  87.) 

It  is  true,  in  the  first  two  cases,  bills  in  equity  were  filed  in  the 
court  l)elow  by  the  persons  claiming  under  the  pre-emption  right 
to  set  aside  the  patent  in  one  of  the  cases,  and  a  location,  which 
operated  to  pass  the  legal  title  in  the  others. 

But  in  the  present  case,  which  comes  uj)  from  a  decision  in  the 


Kailway  Company  r.  McJSiiane.  685 

Sui)reine  Court  ol"  ^lissouri,  though  the  actiou  was  at  law  by  the 
patentee,  to  recover  the  possession,  according  to  the  practice  of 
that  court,  it  is  competent  for  the  defendant  to  set  up  a  prior 
equitaV)le  title  in  bar  of  the  suit,  founded  upon  the  legal  tjtle  to 
the  premises  in  dispute.  Judgment  affirmeO. 

Noth;. — ['iider  the  Stato  practice  in  ejectment,  an  equitable  title  will 
prevail  over  a  du-ect  grant  subsequently  made  by  the  government.  Lt 
Bf'uii  V.  Armitage^  •'>6  Mo..  101. 

In  an  action  of  ejectment,  brouglit  on  a  certitiCate  of  location,  it  may 
be  shown  by  pai-ol  evidence  that  the  name  of  '*  l^ewis  ""  was  inserted 
in  the  certificate  bj'  mistake  instead  of  "'  -loseph  ""  H'ii/iiini.s  v.  ('uipo- 
ter.  42  Mo..  327. 

\  recoverj-  against  one  holding  under  a  canceled  certificate  of  entrj- 
is  no  defence  to  an  action  brouglit  by  the  same  person  to  recover  the 
land,  under  a  patent  subsequently  issued  to  him  on  such  entry.  Me  Lam 
v.  Bovne,  ;i5  Wis..  H7. 


Railway  Company   v.  McSiiaxe  et  al. 
October  Term,  1874.— 22  Wallace,  444. 

I.  The  Railwaii  Company  v.  Fiescoif,  (1(>  Wallace.  603),  modified  and  over- 
ruled so  far  as  it  asserts  the  contingent  right  of  pre-emption  inlands 
granted  to  the  Pacific  Railroad  Company,  to  constitute  an  exemp- 
tion of  those  lands  from  ^tate  taxation. 

2.  But  affirmed  so  far  as  it  holds  tliat  lands,  on  which  the  costs  of  survej- 
liave  not  been  paid,  and  for  which  the  United  States  have  not  issued 
a  patent  to  the  company,  are  exempt  from  State  taxation. 

^^.  Vhere,  however,  the  government  has  issued  the  patent,  the  lands  are 
taxable,  whether  payment  of  those  co.«ts  have  been  made  to  the 
United  States  or  not. 

Appeals  from  the  Circuit  Court  of  the  United  States  for  the 
District  of  Nebraska,  in  which  court  the  Union  Pacific  Railroad 
Company  filed  a  bill  to  enjoin  one  McShaue.  and  other  persons, 
severally  treasurers  of  different  counties  in  the  said  State,  through 
whicli  the  road  ran.  and  in  which  it  had  lands,  from  the  collec- 
tion of  taxes  assessed   upon   them.     There  were  also  cross-bills. 

The  case  was  thus  : 

An  act  of  Julj'^  1,  1862.  creating  tlie  Union  Pacific  Railroad, 
enacted  (12  Stat,  at  Large.  489  :) 

"Section  3.  That  there  is  hereby  granted  to  the  said  company,  for 
the  purpose  of  aiding  in  the  construction  of  said  railroad    *    *    *   and  to 


686  Railway  Company  /;.  McShane. 

secure  the  safe  and  speedy  transportation  of  the  mails,  troops,  nnniitious 
of  war,  and  public  stores  thereon,  every  alternate  section  of  public  land 
*  *  *  designated  by  odd  numbers,  to  the  amoTmt  of  five  alternate  sec- 
tions per  mile  on  each  side  of  said  railroad,  on  the  line  thei'eof.  and  with- 
in the  limit  of  ten  miles  on  said  road,  not  sold,  reserved,  or  otherwise 
disposed  of  by  the  I'nited  States,  and  to  which  a  pre-emption  or  home- 
stead claim  may  not  have  attached  at  the  time  the  lin(j  of  said  road  is 
definitely  fixed.     *     *     * 

"  And  all  such  lands  so  granted.  *  *  *  which  shall  not  be  sold  or 
disposed  of  by  said  company,  within  three  years  after  the  entire  road 
shall  have  been  completed,  shall  be  subject  to  settlement  and  pre-emp- 
tion, like  other  lands,  at  a  price  not  exceeding  81.25  j)er  acre,  to  be  paid 
to  said  company." 

The  statute  went  onto  enact  that  whenever  the  companj^  should 
have  completed  forty  consecutive  miles  of  any  portion  of  its 
road,  ready  for  the  service  contemplated  by  the  act,  and  supplied 
with  all  the  appurtenances  of  a  first-class  road,  the  President  of 
the  United  States  should  appoint  three  commissioners  to  examine 
it  and  report  to  him  in  relation  thereto;  and  if  it  should  appear 
that  forty  consecutive  miles  had  been  properly  completed,  then 
patents  were  to  issue,  -'conveying  the  right  and  title"'  to  the 
lands  to  the  company,  on  each  side  of  the  road,  as  far  as  the 
same  should  be  completed,  to  the  amount  aforesaid ;  and  patents 
in  like  manner  were  to  issue  as  each  forty  miles  of  road  were 
completed. 

An  act  of  July  2d,  1864,  amendatory  of  this  act,  after  author- 
izing the  company,  on  the  completion  of  each  section  of  its  road, 
to  issue  first  mortgage  bonds  on  the  same  to  an  amount  desig- 
nated, and  extending  the  grant  for  twenty  miles  on  each  side  of 
said  road,  enacted  (13  Id.,  356  :) 

•'  Section  21.  That  before  any  land  granted  by  this  act  shall  be  con- 
veyed to  the  said  company  or  party  entitled  thereto,  *  *  *  there  shall 
first  be  paid  into  the  Treasury  of  the  United  States  the  cost  of  surveying, 
selecting,  and  conveying  the  same,  by  the  said  company  or  party  in 
interest,  as  the  titles  shall  be  required  by  said  company." 

In  the  case  of  Railway  Company  v.  Freseott  (16  Wallace,  603), 
this  act  was  interpreted  by  this  court,  upon  some  clauses  not 
necessary  to  be  here  quoted,  as  making  the  costs  of  surveying 
attach  to  all  the  lands  granted  to  the  road,  whether  by  the  origi- 
nal act  of  1862,  or  by  the  amendatorj^  act,  just  quoted,  of  1864. 

The  work  of  constructing  the  road  was  begun  in  1865.  In 
1867,  the  company,  -'for  the  purpose  of  raising  money  to  aid  in 
the  construction,"  mortgaged  its  lands  to  secure  the  payment  of 


Railway  Company  v.  McShane.  687 

$10,000,000.  The  terms  of  the  mortgage  required  the  ti-ustees, 
upon  payment  of  the  bonds,  to  reconve3^  the  residue  of  the  unsold 
lands  to  the  compauy.  It  reserved  to  the  company  the  exclusive 
control  and  management  of  the  lands,  with  power  to  sell  the 
same — the  purchase-money,  however,  to  be  paid  to  the  trustees, 
before  a  conveyance  was  made.  The  holder  of  bonds  under  the 
mortgage  might  purchase  lands  and  pay  for  them  in  bonds.  Both 
company  and  trustees  were  to  join  in  any  conveyance  in  order  to 
make  a  title. 

By  the  1st  of  April,  1860.  a  road  capable  of  being  safeh^  and 
speedily  traveled  on.  though  susceptible  still  of  raan5^  obviouslj-^ 
desirable  improvements,  was  practicalh'  completed. 

On  the  10th  of  that  same  month,  some  allegations  having  been 
made,  that  certain  subsidies  granted  by  the  United  vStates  to  the 
company  in  government  bonds,  to  aid  in  building  the  road,  had 
not  been  applied  in  the  exact  way  designed  by  Congress,  in  the 
acts  granting  them,  and  so  as  to  make  the  road  one  absolutely  of 
the  "  first-class,"  a  joint  resolution  was  passed,  by  which  it  was 
resolved  that,  to  ascertain  the  condition  of  the  road,  the  Presi- 
dent should  appoint  a  commission  of  five  eminent  citizens  to 
examine  into  the  matter  and  report  upon  the  condition  of  the 
road,  and  to  report  also  what  sum.  if  any,  would  be  required  to 
complete  it  as  a  first-class  road,  such  as  was  contemplated  by  the 
acts  of  Congress.  A  commission  of  five  eminent  citizens  was 
accordingly  appointed. 

However,  the  commissioners  whom  the  act  of  1862  had  directed 
to  decide  whether  the  road  was  properly  built,  and  in  pursuance 
of  the  acts  authorizing  it,  having  certified  that  it  was  so  built,  the 
President  accepted  it  May  10th,  1869. 

The  commission  of  eminent  citizens  afterwards  reported  that, 
while  the  road  was  in  its  then  state  a  good  and  reliable  means  of 
communication,  well  equipped,  and  prepared  to  carry  passengers 
and  freight  with  safety  and  dispatch,  yet,  to  make  it  a  first-class 
road,  within  their  construction  of  the  act  of  Congress,  would,  in 
their  judgment,  require  the  expenditure  of  $1,500,000  more  than 
had  as  yet  been  laid  out  on  it. 

The  joint  I'esolution  just  above  mentioned,  b^'  its  third  sec- 
tion had — 

"  Resolved,  That  the  President  is  hereby  authorized  to  withhold 
from  said  company  an  amount  of  subsidy  bonds  sufficient  to 
secure  the  full  completion  as  a  first-class  road,  of  all  sections  of 


688  Railway  Company  v.  McShane. 

such  road.  •  or,  in  lieu  of  sucli"  bonds,  lie  msiy  receive  as  such 
security  an  equal  amount  of  the  first  mortgage  bonds  of  such 
company.' " 

The  section  enacted  further,  that  in  case  it  appeared  to  the 
President  that  the  amount  of  subsidy  bonds  yet  to  be  issued  was 
insufficient  to  secure  the  full  comitletion  of  the  road,  requisition 
should  be  made  on  the  company  for  enough  subsidy  bonds,  or 
enough  of  its  own  first  mortgage  bonds,  to  secure  full  completion, 
and  in  default  of  obtaining  such  security,  that  measures  should 
be  taken  "to  compel  the  giving  of  it,  and  thereby,  or  in  any  man- 
ner otherwise,  to  protect  the  interest  of  the  United  States  in  said 
road,  and  to  insure  the  completion  thereof  as  a  first-class  road,  as 
required  by  law  and  the  statutes  in  that  case  made.*' 

As  to  the  status  of  the  lands  now  assessed,  it  appeared  that,  at 
the  date  of  the  levy  and  assessment  of  the  tax  in  question,  the  com- 
pany had  dealt  with  the  lands,  and  was  now  dealing  with  them. 
as  if  they  were  in  all  respects  their  absolute  property.  They  had 
mortgaged  them,  as  we  have  already  stated  ;  were  now  advertis- 
ing and  selling  them.  They  did  not  recognize  the  right  of  the 
public  to  settle  upon  or  pre-empt,  and  to  buy  them  at  $1.25  per 
acre.  On  the  other  hand,  neither  Congress  nor  the  Interior 
Department  had  taken  any  steps  to  subject  the  lands  to  settle- 
ment and  pre-emption. 

Upon  the  report  of  the  committee  of  '-eminent  citizens."  under 
the  joint  resolution  already  mentioned,  of  April  10th.  1869,  that 
$1.. 500,000  would  be  required  for  supplying  deficiencies  in  the  road, 
the  Secretary  of  tlie  Interior,  November  3d,  1869,  to  indemnify 
the  government,  ordered  that  only  one-half  the  lands  to  which  the 
company  would  otherwise  be  entitled  should  be  patented,  and  that 
patents  for  the  rest  be  suspended  until  further  direction  from  the 
department.  Accordingly,  in  February,  1871,  a  patent  issued  to 
the  company  under  this  order  for  abont  640.000  acres  of  land. 
half  the  quantity  of  the  land  :  the  department  refusing  to  issue  a 
patent  for  the  other  half.  And  so  the  matter  now  stood  :  that  is 
to  say,  patents  for  one-half  of  the  company's  land  were  still  with- 
held as  security  for  the  completion  of  its  road  in  matters  reported 
as  not  up  to  the  required  standard. 

It  also  appeared  that  of  the  lands  situated  within  the  ten-mile 
limit,  every  alternate  odd  section  which  the  company  claimed  had 
been  patented  previous  to  the  assessment  and  levy  of  the  tax, 
that  the  residue  of  the  grants  within  like  limits  was  unpatented 


Railway  Company  v.  McShane.  689 

and  that  the  costs  of  surveying  h.id  not  been  paid  on  an3'  lands 
situated  within  the  ten-mile  limit,  whether  patented  or  uni)atented, 
because  (as  was  stated  by  the  land  agent  of  the  company)  not 
required  by  the  Interior  Department. 

In  respect  to  the  lands  situated  between  the  ten  and  twenty- 
mile  limits,  it  appeared  that  they  had  all  been  selected,  listed, 
certified,  and  tiiat  the  land  otHce  fees  and  costs  of  surveying  had 
been  paid,  and  every  alternate  odd  section  of  those  claimed  by 
the  company  patented,  the  residue  being  unpatented. 

In  this  state  of  things,  the  company,  in  July.  1878.  hied 
the  present  bill.  It  alleged  that  in  1872  the  assessors  of  the 
several  counties  where  the  lands  were  situated  (which  lands  were 
described  in  lists  filed  as  exhibits  with  the  bill)  assessed  them, 
and  that  the  boards  of  commissioners  of  the  same  counties  levied 
taxes  for  State,  school,  and  local  municipal  purposes  upon  them, 
and  that  the  defendants,  the  treasurers  of  these  counties,  were 
about  to  proceed  to  the  collection  of  those  taxes  by  seizing  and 
selling  the  locomotives,  cars,  and  rolling-stock  generally  of  the 
company,  with  other  personal  property.  The  bill  alleged  further, 
that  the  lands  were  not  liable  to  an}'  State  taxation  at  the  time 
of  tiie  assessment  or  levy,  and  it  prayed  that  these  treasurers 
might  be  enjoined  from  further  i)roceedings  for  the  collection 
x)f  them. 

The  grounds  on  which  this  exemption  was  claimed  maj'  be 
divided  into  three  distinct  propositions,  some  of  which  were 
applicable  to  all  the  lands  and  others  to  only  part  of  them. 

1.  That  by  the  third  section  of  the  act  of  1862.  under  which 
the  company  was  organized,  and  by  which  the  lands  within  the 
ten-mile  limit  were  granted  in  aid  of  the  construction  of  the  road, 
it  was  provided  that  all  such  lands  as  should  not  be  sold  within 
three  years  after  the  entire  road  shall  have  been  completed,  shall 
be  subject  to  settlement  and  pre-emption  like  other  lands,  at  a 
price  not  to  exceed  $1.25  per  acre,  to  be  paid  to  the  compan3^ 
And  it  was  alleged  that  these  lands  were  liable  to  this  pre- 
emption, which  would  be  defeated  by  a  sale  of  them  for  the  taxes. 

2.  That  by  the  amendatory  act  of  1864.  which  extended  the 
grant  to  twenty  miles  on  each  side  of  the  road,  it  was  provided 
that  before  any  of  the  land  granted  should  be  conveyed  to  the  com- 
pany, there  should  first  be  jmid  into  the  Treasury  of  the  United 
States  the  cost  of  surveying,  selecting,  and  conveying  the  same 
by  the  said  company,  and  that  these  costs  not   having  been  paid, 

44 


690  Railway  Company  v.  McShane. 

a  sale  for  taxes  would  defeat  the  right  of  the  United  States  to 
enforce  this  claim  and  recover  their  expenses  out  of  the 
lands. 

3.  That  under  the  joint  resolution  of  April  10th,  1869,  author- 
izing  the  President  to  appoint  a  commission  to  inquire  into  the 
manner  in  which  the  road  had  been  constructed,  and,  if  the  report 
was  unfavorable,  to  take  steps  to  secure  its  proper  construction, 
the  secretary  had  refused  to  issue  patents  for  these  lands,  with- 
holdins^  the  title  as  security  for  the  performance  of  what  was 
required  in  that  respect. 

The  first  two  of  the  above  grounds  on  which  an  injunction 
against  the  taxing  was  sought,  were  based  upon  what  the  com- 
plainants conceived  was  adjudged  in  Raihray  Comjiany  v.  Prescott 
(16  Wallace,  603),  it  having  been  there  adjudged  as  they  argued 
1st.  That  whether  patented  or  not  patented,  the  lands  were 
not  subject  to  taxation  of  the  contingent  right  in  the  United 
States  of  offering  them  to  actual  settlers  at  $1.25  per  acre,  in  case 
the  company  did  not  sell  the  same  within  three  years  from  the 
completion  of  the  road  ;  this  objection  being  based  upon  the  closing 
part  of  section  three  of  the  act  of  1862,  supra. 

2d.  That  the  right  of  the  State  did  not,  according  to  the  lan- 
guage of  the  syllabus  in  that  case,  attach  "until  the  right  to  the 
patent  was  complete  and  the  requisite  title  was  fully  vested  in  the 
party  without  anything  more  to  be  paid,  or  any  act  to  be  done 
going  to  the  foundation  of  the  right,"  and  accordingly  that  prepay- 
ment by  the  company  of  the  cost  of  surveying,  selecting,  and  con- 
veying the  lauds  granted,  being  required  by  statute  making  the 
grant,  before  any  of  the  lands  "  shall  be  conveyed,"  no  title  vested, 
even  to  the  patented  tracts,  unless  the  required  prepayment  had 
been  made. 

It  was  contended  on  the  other  side,  and  in  behalf  of  the  right 
to  tax,  that  Raihoay  Company  v.  Prescott  was  unlike  this  case, 
since  here — 

1.  The  company  had  mortgaged  the  lands  in  anticipation  of  a 
completion  of  the  road  ;  and  applied  the  money  received  to  build- 
ing the  road  ;  that  this  was  a  "disposition"  of  the  lands  within 
the  act  of  1862,  though  it  might  not  be  a  "  sale"  within  the  mean- 
ing of  the  same  act. 

2.  The  company  had  received  patents  for  half  of  the  land. 

3.  The  company  had  paid  surveying  fees  on  all  unpatented 
lands  in  the  grant  of  1864,  and  were  read}^  to  pay  them  on  the 


Railway  Company  v.  McShane.  691 

grant  of  1862.  aud   had    not  paid  tliem  on  it   only  because  they 
were  not  asked  for. 

The  court  below,  while  it  confessed  to  some  ditflculty  in  distin- 
guishing the  case  of  Rail /ray  Company  v.  Prescott,  on  either  of 
the  two  points  just  stated,  from  the  one  now  before  the  comt,  was 
still  of  the  opinion  that  the  authority  of  that  case  might,  as  to 
the  first  point  above-mentioned,  be  escaped  from,  so  far  at  least 
as  regarded  the  lands  which  the  company  held  h\  patent.  After 
observing  that  it  would  not  say  whether  a  mortgage  of  the  lands 
was  such  a  "disposition"  as  would  prevent  the  right  of  settle- 
ment or  pre-emption,  it  remarked  that  in  Railway  Coiivpany  v. 
Prescott  the  taxes  were  assessed  before  any  patent  was  issued, 
and,  in  addition,  that  the  cost  of  surveying  had  not  been  paid. 
The  learned  judge  in  this  connection  said  : 

"  I  am  inclined  to  consider  the  true  meaning  and  effect  of  the 
provision  in  question  to  be  this  :  While  the  road  is  being  con- 
structed and  for  a  period  of  three  years  after  the  completion  of 
the  entire  line,  the  company  may  sell  or  dispose  of  the  lands  at 
their  own  price,  and  the}^  are  subject  during  this  period  to  no 
right  of  settlement  or  pre-emption  ;  after  the  three  ,years  have 
elapsed  the  companj'^  may  still  sell  or  dispose  of  their  lands  in 
good  faith,  but  as  to  any  lands  not  thus  sold  or  disposed  of.  there 
is  a  right  on  the  part  of  the  public  to  settle  upon  and  pre-enjiDt 
them  in  the  same  manner  as  if  the}'  were  part  of  the  public 
domain;  the  price,  not  exceeding  Si. 25  per  acre,  being  payable 
to  the  company  instead  of  the  government. 

"  If  this  be  a  correct  view  of  section  three  of  the  act  of  1862,  it 
results  that  the  lands  of  the  company,  so  far  as  they  are  patented, 
are  subject  to  taxation  by  the  authority  of  the  State,  and  this 
privilege  reserved  in  favor  of  the  actual  settler,  and  of  which  he 
may  never  wish  to  avail  himself,  which  is  contingent  in  its  nature 
and  subject  to  be  defeated  by  a  sale  of  the  lands  by  the  company, 
is  not  inconsistent  with,  and  will  not  defeat  the  rightful  authority 
of  the  State  to  tax  the  lands." 

On  the  second  ground  of  exemption  set  up.  he  said  : 

"This  ground  of  exemption,  in  view  of  the  decision  in  the  Pres- 
cott case,  may  be  disposed  of  briefly.  Upon  the  proofs  in  this 
case,  I  am  of  opinion  that  lands  which  have  not  been  patented, 
either  because  the  costs  of  surveying  required  by  section  twenty- 
one  of  the  act  of  1864  have  not  been  paid,  or  because  patents 
have  been  withheld  by  the  Interior  Department  as  indemnity  to 


692  Railway  Company  v.  McShane. 

make  oood  the  deficiencies  in  the  construction  of  the  road  ure  not 
taxable,  and  to  this  extent  tlie  injnuction  will  be  continued  in 
force.  But  as  to  all  lands  which  have  actually  been  patented  to 
the  company,  the  injunction  will  be  dissolved.  It  is  true  that  as 
respects  the  patented  lands  within  the  ten-mile  limits,  the  land 
agent  of  the  company  states  that  the  surveying  fees  have  not  been 
paid  ;  but  he  also  states  that  the  reason  why  they  were  not  paid 
was  that  the  Interior  Department  did  not  require  it. 

"  It  does  not  appear  that  there  are  any  lands  not  patented  which 
have  been  fully  earned  and  set  apart  to  the  company  upon  whicii 
all  fees  have  been  paid,  and  for  which  the  patents  are  not  retained 
by  the  government  for  its  own  security,  and  therefore,  for  all 
practical  pui'poses.  I  hold  that  the  lands  in  this  case  may,  upon 
the  proofs  before  the  court,  be  divided  into  two  classes  :  1st.  those 
which  are  patented  and  which  are  taxable  :  2d,  those  which  have 
not  been  patented  and  which  are  not  shown  to  be  taxable." 

The  court  below  accordingly  decreed  a  dismissal  of  the  bill  as 
to  all  lands  embraced  in  the  compan3''s  patent  of  February  23d, 
1871,  and  an  injunction  as  to  the  lands  which  liad  not  been 
patented  to  the  company. 

From  that  deci'ee  both  parties  appealed  :  the  company,  because 
an}'  of  its  lauds  were  allowed  to  be  taxed  ;  the  county  treasurer. 
McShane,  because  they  were  not  all  taxed. 

Mr.  A.  J.  Poppletoii  for  the  railroad  company. 

The  lauds  which  have  been  taxed  in  this  case  are  situated  in 
tlie  same  way  as  were  those  in  Railivuy  Company  v.  Prescott. 
Both  bodies  of  lands  were  granted  under  the  same  acts  of  Con- 
gress, to  be  used  in  the  same  way,  to  be  held  by  the  same  tenure 
and  upon  similar  conditions.  The  rule  laid  dowii  in  the  case  just 
mentioned  must,  therefore,  govern  this  case. 

That  all  lauds  in  this  case  which  are  unpatented,  and  upon  which 
the  costs  of  surveying  have  not  been  paid,  or  patents  to  which 
are  withheld  by  the  government  as  security  for  a  completion  of 
the  road,  according  to  the  standard  fixed  by  its  charter,  are  within 
the  rule  laid  down  in  the  case  just  quoted,  and,  therefore,  are  not 
subject  to  State  taxation,  seems  to  us  too  plain  for  argument. 
They  are  clearl}^  within  the  first  ground  assigned  in  that  case  for 
non-taxability. 

In  respect  to  all  the  patented  lands  in  this  case  the  exemption 
rests  solely,  we  admit,  upon  the  second  ground  laid  down  in  the 


Railway  Company  v.  McShane.  693 

siuiie  case,  to  wit.  upon  "the  contingent  right  (in  tlie  goverDiiieiit) 
of  otTeriiiii"  the  land  to  actual  settlers  at  the  mininmm  price  asked 
by  tlie  governiuent  lor  its  lands."  But  we  insist  that  this  uround, 
in  the  present  case,  is  sufficient  and  conclusive.  It  also  operates 
upon  both  classes  of  lands. 

Does  this  ground  of  exemption  operate  upon  the  patented  lands? 
The  court  below,  though  laboring  hard  to  come  to  such  a  conclu- 
sion, held  that  in  respect  to  the  patented  lands,  the  case  of  Railway 
dompaiif/  V.  Prescott  did  not,  of  necessity,  control  this. 

The  real  question  is,  therefore,  what  is  the  principle  of  exemp- 
tion thus  laid  down  by  this  coui't  in  the  case  of  Raihvay  Company 
V.  Prescott,  and  from  which  the  court  below  sought  to  extricate  the 
present  case?  Does  it  apply  less  to  patented  than  to  unpatented 
lands?  As  to  one  part,  failure  of  the  company  to  perform  all 
conditions  precedent  to  a  perfect  right  to  a  patent,  exempts  from 
taxation  ;  in  the  other,  an  interest  or  a  right  of  the  United  States 
in  the  lands,  operates  as  an  exemi)tion.  The  first  is  referable  to 
the  conduct  and  interests  of  the  company  ;  the  second  to  the  rights 
of  the  government. 

Is  this  right  of  the  United  States  an}'-  less  worth}^  of  preserva- 
tion after  patent  issued  than  before?  Is  it  cut  olf  by  the  issue  of 
a  patent?  If  worthy  of  preservation  at  any  stage,  what  limit  can 
be  assigned  except  the  limit  of  its  existence  in  the  United  States? 
Unless  the  interest  of  the  United  States  was  erroneously  protected 
in  the  Raihvay  Company  v.  Prescott,  (a  matter  not  to  be  supposed), 
these  lands  must  be  lield  exempt,  on  the  ground  of  the  contingent 
right  in  the  government  of  offering  the  lands  at  a  minimum  price. 
This  contingent  right  of  the  United  States  cannot  be  cut  off  by 
the  issue  of  a  patent,  for  the  following  reasons  : 

1.  No  patent  issued  under  the  act  could  convey  a  greater  or 
better  title  than  is  authorized  by  it.  The  patent  being  merely  the 
evidence  of  tlie  title  granted  by  the  acts  of  Congress,  nothing 
inserted  in  it  by  the  officers  charged  with  the  administration  of 
the  grant  could  enlarge  it. 

2.  To  hold  that  this  "  contingent  right  of  offering  the  land  to 
actual  settlers  at  the  minimum  price  asked  by  the  government  for 
its  lands,"  is  extinguished  by  the  issue  of  the  patent,  is  to  nullify 
the  right  which  this  provision  was  framed  to  create  and  protect. 

Nothing  can  defeat  the  opei'ation  of  the  second  ground  of  exemp- 
tion upon  both  classes  of  lands,  except  proof  that  the  lands  have 
been  ■•  sold  or  dif^posed  of"  by  the  comi)any.  as  provided  in  section 


/694  Railway  Company  v.  McShane. 

third,  act  July  1st,  1862.  It  does  not  relieve  the  question  to  siiow 
that  tlie  road  was  completed  in  186i».  For  in  that  case,  the  rigljt 
of  the  United  States  to  require  the  sale  of  the  lands  at  $].2o  per 
acre,  has  ceased  to  be  contingent,  and  become  absolute. 

Messrs.  Clinton  Brlggs  and  ./.  C.  Cowin  for  the  treasurer. 
McShane. 

I.  The  company  insists  that  the  three  years  pre-emption  clause, 
contained  in  the  third  section  of  the  act  of  1862.  defeats  the  right 
to  tax,  aud  relies  on  Railway  Company  v.  Prescott.  But,  assum- 
ing— and  this  is  but  for  the  sake  of  argument — that  the  court  below 
did  not  put  the  right  construction  on  that  rather  unintelligible 
section,  still  the  case  relied  on  b}^  the  other  side  does  not  control 
this  one. 

By  the  terms  of  the  act  of  1862,  the  right  to  settlement  and  pre- 
emption is  to  exist  only  in  case  that  the  lands  are  not  "sold  or 
disposed  of"  within  three  years  after  the  entire  road  shall  have 
been  completed.  The  lands  need  not  be  "sold"  within  the  three 
years.  It  is  enough  that  they  be  "disposed  of."  When  they  were 
mortgaged  thej'^  were  "disposed  of,"  even  if  they  were  not  "sold." 

The  road  was  completed,  really,  in  May,  1869.  These  lands 
were  mortgaged  in  1867.  They  were,  in  fact,  already  disposed  of 
when  the  road  was  completed.  The}'  were  disposed  of  in  1867, 
two  years  before  a  title  to  them  existed  in  the  company.  When, 
however,  a  title  was  obtained  by  the  company  in  virtue  of  the 
completion  of  their  road,  that  title  inured  to  the  mortgagees,  on  the 
well-known  principle  of  "  estoppel." 

The  mortgagees,  therefore,  immediatelj^  on  the  completion  of  the 
road — and  of  course,  within  the  required  three  years — held  a 
valid  mortgage. 

This  mortgage  was  for  an  immense  amount,  $10,000,000.  The 
bill  does  not  allege  that  the  lands  had  any  value  above  the  mort- 
gage. This  $10,000,000  accomplished  the  same  purpose  that  a 
like  sum  would  have  done  if  paid  by  purchasers  of  the  fee, 
and'  the  purposes  of  the  grant  were  just  as  well  accomplished  in 
one  mode  of  disposition  of  the  lands  as  the  other.  Congress  gave 
the  lands — such  is  the  language  of  the  law; — "  for  the  purpose  of 
aiding  in  the  construction"  of  the  road.  The  mortgagees  have 
furnished  the  aid— $10,000,000. 

Their  money  has  enabled  the  company  to  build  the  road  and 
earn  the  lands. 


Railway  Company  v.  McShane.  695 

The  mortgagees  knew  that  the  money  paid  was  for  the  precise  pur- 
pose for  which  the  uraut  was  made  ;  they  taking  only  the  risk  of  the 
ability  of  the  company  to  earn  the  lands  with  the  aid  of  this  money. 

The  mortgage  provides  that  the  bondholder  may  purchase  lands 
and  pay  for  them  in  bonds.  He  has  the  option  to  sustain  the 
relation  of  a  mortgagee  or  that  of  a  jjurchaser.  lie  has  the  right 
to  refuse  money  and  demand  land  in  payment  at  the  appraised 
value.     Thus  the  instrument  is  more  than  a  mortgage. 

Then,  in  addition,  the  company  in  this  case  has  received  patents 
for  half  its  lands,  and  has  paid  surveying  fees,  &c.,  on  those 
unpatented.  It  has  advertised  its  lands  for  sale  and  sold  them  ; 
assuming  thus  and  otherwise  by  its  acts  an  absolute  ownership- 
In  these  particulars,  as  in  the  one  just  mentioned,  the  case  is  distin- 
guished from  liaihmy  Company  v.  Frescotf,  so  far  as  that  case 
rests  on  the  obligation  to  give  i)re-emption. 

II.  It  is  distinguishable  also  as  respects  the  fees  for  surveying, 
&c. : 

1.  As  respects  the  grant  of  1864,  the  fees  for  surveying,  &c., 
have  been  paid  in  all  cases,  and  wliether  patent  has  issued  or  has 
not  issued. 

2.  As  respects  the  grant  of  1862,  these  fees  are  not  asked  until 
after  patent  issues.  The  land  department  apparently  does  not 
construe  as  does  this  court  the  twenty-first  section  of  the  act  of 
1864,  as  applying  to  lands  granted  by  the  act  of  1862.  At  all 
events,  it  does  not  require  prepayment  of  the  fees  for  surveying 
as  to  lands  granted  by  the  act  of  1862 — lands  within  the  ten-mile 
limit.  The  non-payment  of  these  costs,  therefore,  is  no  impedi- 
ment to  the  company's  getting  a  patent.  It  is  now  the  equitable 
owner  of  these  unpatented  lands,  and  so  has  a  taxable  interest 
in  them.  It  is  unimportant  whether  the  patent  was  actully  issned 
or  not.     The  company-  had  earned  the  lands. 

The  land  department  of  the  United  States,  indeed,  refuses  to 
give  a  patent  for  some  of  the  lands,  not  because  the  surveying 
fees  are  not  paid,  as  is  required  in  regard  to  the  Ifj^ds  granted  by 
the  act  of  1864  undoubtedly,  and  as  this  court  has  decided  as  to 
those  granted  in  1862  also,  but  because  the  joint  resolution  of 
1869  required  that  security  should  be  got  for  the  making  of  a 
certain  sort  of  perfect  road.  But  the  joint  resolution  is  not  aimed 
at  the  lands.  It  requires  that  subsidy  or  other  bonds  shall  be 
held  as  security  for  the  expenditure,  and  if  they  are  not  volun- 
tarily given  by  the  company,  the  Attorney  General  is  required  to 


696  Railway  Company  v.  McShane. 

institute  suits  "to  coini)el  the  oiviu<r  such  security."  There  is 
no  intimation  in  tlie  act  that  lands  or  patents  are  to  be  withheld 
as  such  security.  Tlie  act  of  the  land  departnient  in  withholding 
patents  is  without  authority.  The  commissioners  had  certified 
the  road  ;  the  President  had  accepted  it.  Anything  further  between 
the  company  and  the  Ignited  States  was  a  matter  for  the  courts. 

The  contingent  rights  in  the  United  States,  which  in  Raihray 
Company  v.  Prescott  was  held  sufficient  to  exempt  lands,  must, 
whether  coming  from  the  '' pre-emption"  clause  or  from  the  right 
to  retain  for  payment  of  costs  of  surveying,  c^c,  to  the  eye  of  a 
practical  man  appear,  as  applied  to  the  present  case,  but  rights 
of  a  dim  and  shadowy  sort. 

How  does  the  case  stand?  ^ 

1 .  As  respects  the  United  States  : 

It  'granted'*  the  lands  to  the  company  in  1862:  it  accepted 
the  road  as  completed  in  1869,  thus  declaring  that  the  company 
had  paid  for — earned  the  lands.  It  issued  patent  for  640,000 
acres  in  1871,  and  received  from  tlie  company  the  surveying,  &c., 
on  the  lands  not  patented. 

2.  As  respects  the  acts  and  declarations  of  the  company  : 

It  accepts  the  grants  made  by  the  United  States.  It  declared  in 
1869  that  it  had  completed  its  entire  road,  thereby  asserting  it 
had  earned  and  was  entitled  to  the  lands.  It  receives  patents  for 
a  part  of  them,  and  pays  the  surveying  fees.  &c.,  on  the  residue. 
It  mortgaged  its  grant  for  $10,000,000,  and  received  the  money 
and  applied  it  to  building  the  road.  It  exercised  exclusive  acts 
of  ownership  by  selecting,  classifying,  advertising  them  for  sale, 
and  selling  portions  of  its  grant.  It  now  asks  the  court  to  inter- 
fere by  injunction  to  prevent,  of  course,  a  cloud  being  cast  upon 
its  titles. 

Thus,  both  the  United  States  and  the  company  say  that  the 
lands  belong  to  the  company.  Is  not  Nebraska,  then,  justified  in 
so  regarding  them,  and  in  seeking  to  make  them,  as  private  prop- 
erty, bear  a  ji^t  proportion  of  the  public  burdens? 

We  submit  that  every  consideration  of  equity  and  justice  is  in 
favor  of  the  tax. 

How  long,  indeed,  shall  these  immense  bodies  of  land  remain 
in  the  situation  in  which  this  company  would  place  them?  Not 
under  the  control  of  the  United  States,  so  as  to  be  open  to  settle- 
ment and  cultivation  ;  not  owned  by  the  company,  so  as  to  be 
subject  to  State  taxation,  but  owned  by  it  when  it  wants  lenders 


Railway  Company  v.  McShane.  697 

on  mortgage,  or  when  it  wants  purchasers  ;  owned  by  it  for  every 
beneficial  purpose,  but  not  owned  for  the  jMirpose  of  bearing  any 
share  of  the  public  burdens. 

Even  if  the  United  vStates  has  some  claim  against  the  lands  for 
surveying  fees  or  anything  else,  it  is  difficult  to  see  how  it  could  be 
prejudiced  by  a  sale  of  any  of  them  for  taxes.  This  court  said 
in  the  case  of  Carroll  v.  Saford,  13  Howard.  462  : 

'•The  sale  for  taxes  is  made  on  the  presumption  that  the  i)ur- 
chase  from  the  government  has  been  bona  fide,  and  if  not  so  made 
the  purchaser  at  the  tax  sale  acquires  no  title,  and  conseciuently 
no  embarrassment  can  arise  in  the  future  disposition  of  tlie  same 
land  by  the  government." 

A  different  view  seems  to  have  been  taken  in  Raihniy  Company 
v.  Frescott.     But  this  question  is  not  involved  here. 

Reply  : 

The  position  of  the  other  side  is.  that  the  contingent  pre-emp- 
tion right  in  favor  of  settlers  of  the  United  States,  protected  by 
Raihvay  Company  v.  Prescott,  has  been  destroyed  because  the 
company  has  mortgaged  the  lands  and  so  "disposed  of"  them. 
But  both  the  legal  and  the  ordinary  signification  of  these  words 
impart  an  absolute  parting  with  all  control  over  or  reversionary 
interest  in  the  lands.  Neither  a  mortgage  nor  a  contract  of  sale 
accomplishes  such  an  alienation  of  interest  and  control.  In  both 
cases  the  company  retain  an  interest  in  the  thing  mortgaged  or 
contracted  to  be  sold,  which  may,  upon  the  happening  of  certain 
events,  revest  a  complete  title  in  a  part  or  of  all  the  property. 
Suppose,  after  the  execution  of  the  mortgage,  the  company  had 
got  money,  from  suV)sidy  bonds,  or  from  some  other  source,  and 
had  discharged  the  mortgage,  not  an  acre  of  the  land  having  been 
yet  sold,  could  it  he  contended  that  the  simple  making  of  the 
instrument  of  mortgage  was  such  "  disposition  of"  the  land  as 
would  defeat  the  operation  of  the  third  section  of  the  act  of  1862? 

If  such  an  interpretation  be  accepted,  then  a  mortgage,  how- 
ever inconsiderable,  a  contract  to  survey,  with  however  irrespon- 
sible a  party — and  each  with  an  absolute  certainty  of  reversion 
to  the  company  of  a  title  in  fee — would  operate  to  defeat  the 
intent  of  Congress. 

If,  therefore,  the  purpose  and  object  of  Congress  in  framing  the 
section  under  consideration,  was  that  authoritatively  declared  by 
this  court  in  the  case  of  R((ilw((y  Company  v.  Prescott,  it  is  sub- 


698  Railway  Company  v.  McShane. 

mitted  with  confidence  that  no  form  of  conveyance,  and  no 
species  of  alienation  of  ^ranted  lands,  which  falls  short  of  an 
unconditional  partino;  with  the  control  of  and  title  to  the  same, 
either  present  or  reversionary,  legal  or  equitable,  can  operate  to 
defeat  the  condition  imposed  by  the  section  in  question. 

Therefore,  certainly  all  the  lands  in  controversy,  patented  or 
unpatented,  not  havins:  been  either  "sold  or  disposed  of"  by  the 
company,  whether  the  three  years  from  the  date  of  the  completion 
of  the  road  have  elapsed  or  not,  are  subject  to  the  continsj;ent 
right  reserved  by  Congress  in  the  section  under  consideration, 
and  are.  therefore,  not  subject  to  taxation. 

And  the  same  thing  is  true  of  all  lands,  whether  patented  or 
Tinpatented,  upon  which  the  costs  of  surveying,  &c.,  have  not  yet 
been  paid.  The  language  of  the  statute  of  1864,  is  absolute,  and 
has  been  held  by  this  court,  in  one  part  of  the  same  case  of  Rail- 
way Company  v.  Prescott,  to  apply  to  the  ten-mile  grant  of  1862,  as 
well  as  to  the  twenty-mile  grant  of  1864.  Otherwise,  by  a  colorable 
conveyance,  or  by  a  contract  of  sale,  the  onerous  terms  of  which 
would  provide  for  and  make  sure  a  forfeiture,  or  by  a  mortgage 
for  a  sum  so  inconsiderable  as  to  render  redemption  morally  cer- 
tain, the  whole  object  of  the  provision  would  be  easily  defeated. 
Nor  is  the  question  modified  by  the  circumstance  that  the  mort- 
gage is  for  a  large  sum.  especially  when  it  appears  that  the  pro- 
ceeds of  the  sales  of  the  lands  which  are  being  made  are  pledged, 
and  are  being  applied  to  the  jiayment  of  the  mortgage  debt. 

The  mode  adopted  by  the  company  for  rendering  the  grant 
available  for  the  purpose  for  which  it  was  made,  must  have  been 
anticipated  by  Congress  when  passing  the  act.  Sales  of  the  lands 
before  the  road  is  built,  and  in  quantities  such  as  to  realize  sums 
of  much  use  in  carrying  forward  the  work,  are  known  to  be  impos- 
sible. By  means  of  a  mortgage  upon  them,  with  a  pledge  to  its 
redemption  of  the  proceeds  of  the  sales  of  the  lands,  after  their 
value  has  been  greatly  increased  by  the  building  of  the  road,  the 
funds  for  the  purpose  can  be  raised,  and  they  have  never  been 
raised  by  other  means.  With  this  knowledge,  it  is  impossible  to 
think  that  Congress,  in  the  terms  of  the  third  section,  intended 
to  include  a  mortgage  of  the  lands,  and  defeat  the  very  important 
object  of  the  clause,  almost  at  the  very  moment  of  enacting  it. 

The  construction  contended  for  on  the  other  side,  involves  the 
matter  in  infinite  confusion.  This  company  is  selling  the  lands 
and  applying  the  proceeds  to  pay  off  the  mortgage.     If.  by  the 


Railway  Company  v.  McShane.        699 

sale  of  one-fourth  thereof,   the   whole   mortgage  debt   is  paid,  is 
there  a  disposition  of  the  remaining  three-quarters? 

Mpv.  Justice  Miller  delivered  the  opinion  of  the  court. 

We  will  take  up,  without  restating  them,  the  three  several  prop- 
ositions which  present  the  grounds  on  which  the  exemption  from 
State  taxation  is  claimed ;  and,  in  examining  their  legal  bearing 
on  the  case,  will,  at  the  same  time,  where  it  is  necessary,  inquire 
how  far  they  are  supported  ])y  the  facts  of  the  case,  and  will 
then  look  into  tlie  other  matters  set  up  by  way  of  defence. 

The  first  and  second  of  the  propositions  relied  on  by  the  rail- 
road company,  are  supposed  to  find  suflflcient  support  in  the  case 
of  Railway  Company  v.  Prescott  (16  Wallace,  608.) 

This  was  a  suit  by  the  Kansas  branch  of  the  Union  Pacific 
Railroad  Company  to  have  declared  void  a  sale  of  some  of  its 
land  for  taxes,  made  under  State  authority,  and  this  court  granted 
the  relief  on  the  ground  that  the  land  was  not  lialile  to  taxation 
at  the  time  it  was  assessed  for  the  taxes  under  which  it  had  been 
sold.  No  patent  had  been  issued  to  the  company  when  the  taxes 
were  assessed,  and  the  costs  of  surveying  the  land  had  not  been 
paid  to  the  government  by  any  one. 

This  court  reaffirmed  the  doctrine  that  lands  which  had  consti- 
tuted a  part  of  the  public  domain  might  be  taxed  by  the  States 
before  the  government  had  parted  with  the  legal  title  l)y  issiiing 
a  patent,  but  that  this  could  only  be  done  when  the  right  to  the 
patent  was  complete,  and  the  equitable  title  fully  vested  in  the 
party,  without  anything  more  to  to  be  paid,  or  any  act  to  be  done 
going  to  the  foundation  of  his  right.  And  it  said  that  in  that 
case  the  United  States  had  a  right  to  retain  the  patent  until  the 
costs  of  surveying  the  land  had  been  paid,  which  had  not  been 
done,  and  that  the  right  of  pre-emption  in  lands  unsold  by  the 
company  within  three  years  after  completion  of  the  road,  would 
be  defeated  if  a  sale  for  State  taxes  could  be  made  whicli  would 
be  valid. 

This  latter  ground  was  not  necessary  to  the  judgment  of  the 
court,  as  it  rested  as  well  on  the  failure  to  pay  the  cost  of  survey- 
ing the  land.  And  we  are  now  of  opinion,  on  a  fuller  argument 
and  more  mature  consideration,  that  the  ])roi)osition  is  not 
tenable. 

Tlie  road  was  completed  and  accepted  by  the  President  in  May, 
l«G!i,  and  these  lands  have  been  subject  to  such  pre-emption  since 


700  Railway  Company  v.  McShane. 

three  years  from  that  date,  ii"  this  right  can  be  exercised  l)v  the 
settler  without  further  lesiislatioii  by  Congress,  or  action  l)y  the  In- 
terior Department.  We  do  not  now  propose  to  decide  whether  any 
such  legislation  or  other  action  is  necessary,  or  whether  any  one. 
having  the  proper  qualification,  lias  the  right  to  settle  on  these 
lands  and,  tendering  to  the  company  the  dollar  and  a  quarter  per 
acre,  enforce  his  demand  for  a  title.  It  is  not  known  that  any 
such  attempt  has  been  made,  or  ever  will  l)e,  or  that  Congress  or 
the  department  has  taken,  or  intends  to  take,  any  steps  to  invite 
or  aid  the  exercise  of  this  right.  It  would  seem  that  if  it  exist, 
it  Avould  not  be  defeated  by  the  issue  of  the  patent  to  the  com- 
pany, and  it  may,  therefore,  remain  the  undefined  and  uncertain 
right,  vested  in  no  particular  person  or  persons,  whicli  it  now  is,  for 
an  indefinite  period  of  time.  The  company,  meantime,  obtains 
the  title,  sells  the  lands  when  a  good  offer  is  made,  and  exercises 
all  the  other  acts  of  full  ownership  over  them,  without  the  liability 
to  pay  taxes. 

We  are  of  opinion,  therefore,  that  this  right  confers  no  exemption 
from  taxation,  whether  the  land  be  patented  or  not ;  and  so  far  as 
the  opinion  in  the  case  of  Raihvai/  Company  v.  Prescott  asserts  a 
different  doctrine,  it  is  overruled. 

But  the  proposition  that  the  State  cannot  tax  these  lands  while 
the  cost  of  surveying  them  is  unpaid,  and  the  United  States 
retains  the  legal  title,  stands  upon  a  different  ground. 

The  act  of  1864,  section  twenty-one,  declares  that  before  any 
of  the  lands  granted  by  this  act  shall  be  conveyed  to  the  com])any, 
there  shall  first  be  paid  into  the  Treasury  of  the  United  States 
the  cost  of  surveying,  selecting,  and  conveying  the  same. 

That  the  payment  of  these  costs  of  surveying  the  land  is  a 
condition  precedent  to  the  right  to  receive  the  title  from  the  gov- 
ernment, can  admit  of  no  doubt.  Until  this  is  done,  the  equital)le 
title  of  the  company  is  incomplete.  There  remains  a  payment  to 
be  made  to  perfect  it.  There  is  something  to  be  done  without  which 
the  company  is  not  entitled  to  a  patent.  The  case,  clearly,  is  not 
within  the  rule  which  authorizes  State  taxation  of  lands  the  title 
of  which  is  in  the  United  States. 

The  reason  of  this  rule  is  also  fully  applicable  to  this  case.  The 
United  States  retains  the  legal  title  by  withholding  the  patent, 
for  the  purpose  of  securing  the  payment  of  these  expenses,  and  it 
cannot  be  permitted  to  the  States  to  defeat  or  embarrass  this 
right   by  a  sale  of  the   lands  for  taxes.     If  such  a  sale  could  be 


Railway  Company  v.  McSiiane.  701 

made,  it  must  be  valid  if  the  land  is  subject  to  taxation,  and  tlie 
title  would  pass  to  the  purchaser.  It  no  such  title  could  })ass.  then 
it  is  because  the  land  is  not  liable  to  the  tax  ;  and  the  treasurers 
of  the  counties  have  no  I'iglit  to  assess  it  for  that  purpose. 

lint  when  the  United  States  parts  with  her  title,  she  has  parted 
with  the  only  means  which  that  section  of  the  statute  irives  for 
securing;  the  payments  of  these  costs. 

It  is  b}"  retainina:  the  title  that  the  payment  of  costs  of  survey 
is  to  be  enforced. 

And  so  far  as  the  rioht  of  the  State  to  tax  the  land  is  concerned, 
we  are  of  opinion  that  when  the  original  grant  has  been  perfected 
by  the  issue  of  the  patent,  the  right  of  the  State  to  tax.  like  the 
right  of  the  company  to  sell  the  lands,  has  become  perfect. 

It  is  admitted  that  part  of  the  lands  in  dispute  have  been 
l)ateuted.  and  part  of  them  have  not.  And  the  circuit  judge,  in 
his  opinion  and  decree  divides  them  into  the  i)atented  and  the 
unpatented  lauds,  and  we  concur  in  his  opinion  that  there  is  no 
reason  why  the  patented  lands  should  not  be  taxed. 

As  to  those  which  are  not  patented,  it  may  be  assumed  from 
the  evidence  in  the  case  that  on  none  of  them  have  the  costs  of 
survey  been  paid  or  tendered  to  the  United  States,  and  if  they  are 
all  subject  to  that  provision  of  the  act  of  1864  they  ai-e  not  liable, 
on  the  principle  we  have  stated,  to  be  taxed.  It  is  said,  however, 
by  counsel  for  the  State,  that  the  Interior  Department  has  never 
demanded  the  costs  of  surveying  the  lands  within  the  original 
ten-mile  limit,  in  cases  in  which  they  have  issued  patents,  and  do 
not  claim  them  in  those  for  which  no  patent  has  been  issued  ;  that 
as  the  non-payment  of  these  costs,  therefore,  is  no  impediment  to 
demanding  and  receiving  the  patents,  the  equitable  title  is  com- 
plete, and  they  should  be  held  subject  to  taxation. 

We  held,  however,  in  the  case  of  Railroad  Company  v.  Frescott, 
that  these  costs  of  survey  attached  to  all  the  lands  granted  to  the 
road,  whether  by  the  original  act  or  by  the  amendatorj-  act  of 
1864.  and  we  have  no  sufficient  evidence  before  us  that  the  Depart- 
ment of  the  Interior  has  acted  on  a  ditferent  principle.  If.  how- 
ever, they  have  done  so  heretofore,  it  is  not  for  us  to  say  that  they 
will  grant  patents  hereafter  without  payment  of  these  costs  ;  and 
in  a  case  where  we  are  called  on  to  decide  whether  such  costs  are 
lawfully  demandable  before  the  legal  title  of  the  company  is  per- 
fect, we  must  abide  by  our  own  construction  of  the  statute. 

It  is  said,  however,  that  these  lands  have  been  mortgaged  by 


702  Railway  Company  v.  McShane. 

the  couipaii}^  under  sanction  of  the  act  of  Congress  on  that  sub- 
ject, and  that  the  mortoage  conveys  the  legal  title  out  of  United 
States,  so  that  her  rights  can  no  longer  be  interposed  to  protect 
them  from  taxation. 

It  is  not  necessary  to  go  into  the  merely  technical  question 
whether  the  legal  title  passed  from  the  United  States  by  virtue  of 
that  mortgage  and  the  act  of  Congress  which  authorized  it,  nor 
whether,  if  it  ever  becomes  necessary  to  foreclose  that  mortgage, 
the  rights  of  the  United  States  in  the  land  would  be  divested  by 
the  proceedings,  because  we  are  satisfied  that  the  United  States, 
until  she  conveys  them  by  patent  or  otherwise,  has  an  interest, 
whether  it  be  legal  or  equitable,  which  the  State  of  Nebraska  is 
not  at  liberty  to  divest  by  tlie  exercise  of  the  right  of  taxation. 

Under  these  views  we  are  of  opinion  that  the  State  had  no 
right  to  tax  the  lands  for  which  the  cost  of  surveying  had  not 
been  paid,  and  for  which  no  patent  had  been  issued  ;  and  as  the 
decree  of  the  circuit  court  was  made  in  conformity  with  these 
principles,  it  is  Affir^ned. 


Note.— See  Hnrmewell  v.  CabS  Co.,  'li  Wallace,  464  ;  7'ucker  v.  Fer- 
guson, 22  Wallace,  527  ;  Colorado  Co.  v.  Cormnissionrr.s,  5  Otto,  2.59  ;  Kan- 
sas Indian  Tax  Cases,  5  Wallace,  737  ;  A'efc  York  Indian  Tax  Cases,  5 
Wallace,  761;  Peck  y. Miami  Co.,  4  Dill.,  370;  Corn's  Franklin  Co.  v. 
Pennork,  18  Kan.,  o7P  ;  Farringtoa  v.  Wih-.n,  29  Wis-,  383;  Staie  of  Xew 
Jersei/  v.    Wilton,  <  ranch,  164. 

An  assessment  and  sale  of  land  for  taxes,  while  the  land  belongs  to 
the  United  States,  is  void.  MrCoonY.  Scales,  i)  Wallace,  23;  People  v. 
Moirison,2-2  Cal..  73;  Hall  v.  Dowling,  18  Cal  .  fil'»  ;  Wright  v.  Cradle, 
baiigh,  3  Nev.,  341 . 

Improvements  on  the  public  land  may  be  taxed  by  the  state.  Pmple 
v.  Shearer,  30  Cal  ,  645;  People  v.  Cohen,  31  Cal.,  210;  f'eople  v.  Black 
Diamotid  C  and  M.  Co.,  37  Cal.,  54;  Haas  v   Misner.  1  Idaho  Ter.,  203. 

Improvements,  which  are  at  common  law  part  of  the  realty,  cannot  be 
taxed  while  the  land  belongs  to  the  United  States.  Parker  v.  IVi'isor,  5 
Kan.,  362. 

As  soon  as  public  land  has  been  entered  and  paid  for,  it  is  subject  to 
State  taxation.  Carroll  v-  Safford,  3  How.,  441,  and  this  rule  applies  to 
donation  entries.      Wi/herspoon  v.  Duncan.  4  Wallace,  210, 

Until  the  survey  of  a  private  land  claim  has  been  made  and  approved 
by  tlie  land  dc-partment.  the  land  is  not  subject  to  taxation.  Whtney  v. 
Ganderson,  31  Wis.,  359;    Whibieij  v.  Morrow,  34  Wis.,  644. 

After  entry,  a  sale  for  taxes,  and  a  tax  deed,  will  convey  the  legal  title 
to  the  land,  and  the  patent  afterwards  issued,  will  eniu-e  to  the  benefit 


Bronson  v.  Kukuk.  703 

of  the  holder  under  the  tax  deed  Gwyime  v.  Niswaiiyei\  20  Ohio,  ■")")(;; 
MaUhnvs  v.  Rulor,  -J-l  Ohio  St.,  430  ;  Dunn  v.  Uearick,  14  Iiid..  242. 

Land  entered  under  the  homes-tead  law.  cannot  be  taxed,  at  least, 
until  the  five  years  residence  I'equired  by  the  law  has  expired.  Morvidy 
V.  Bonne  Ci>.,  oO  Iowa.  G;^4  ;   Lomj  v.  Cnlp^  14  Kansas,  412. 

It  has  been  held  in  Nebraska,  that  land  entered  under  the  homestead 
law  becomes  subject  to  taxation,  as  soon  as  the  five  years  residence  has 
been  completed,  although  final  proof  has  not  been  made.  JloUuif/erv. 
While,  r,  Neb  ,  ;J1>9. 

A  mill  on  public  land  held  as  a  homestead,  is  not  subject  to  taxation, 
although  the  mill  does  not  belong  to  the  homestead  settler.  (Jliaxe  Co. 
V.  Sfii/iiiKiii,  14  Kan.,  .■>."S2. 

At  the  time  of  the  entry,  the  law  of  the  State  exempted  land  sold  by 
the  government  from  taxation  for  five  years  from  the  time  of  purchase. 
Held :  'I'hat  such  law  was  a  contract  with  the  purchaser  not  to  tax  the 
land  within  the  five  years,  and  repealing  the  law  could  not  subject  .<iich 
lands  to  taxation  before  the  expiration  of  the  five  5'ears.  Thunipariu.  v. 
Holton.  6   McLean.  380. 

The  act  of  ('ongress  of  February  20,  1811.  prohibiting  the  State  from 
taxing  land  sold  bj"  the  United  States  for  five  years  after  the  sale,  does 
not  apply  to  the  lands  granted  to  the  State,  under  the  act  of  September 
4,  lt»41.     Risliop  V.  Murks-,  15  La.  Ann  ,147. 

As  to  the  taxation  of  bounty  lands  granted  for  military  services  in  the 
war  of  1812,  see  Sands-  v.  Adams  Co.,  11  Iowa.  o~7  ;  and  Fis/nrv.  Wis- 
ner,  84  Iowa,  447. 

Under  the  Wyandotte  treatj^  of  January  31,  ISTi."),  land  sold  by  the 
competent  class,  became  subject  to  taxation  from  the  date  of  the  sale, 
and  not  from  the  date  of  the  approval  of  the  sale  by  the  Seci'etary  of  the 
Interior.     McMuliDn  y.   '<  ^'/.s/?,  I'reasurer,  1 1  Kan.,  280. 

Under  the  Miami  treaty  of  June  5,  1854,  land  patented  to  a  reservee 
is  exempt  from  taxation  while  held  by  the  reservee,  but  becomes  subject 
to  taxation  as  soon  as  sold  by  him.  Miami  Co.  v.  Jhackenridye,  12 
Kansas,  '  14. 


Bronson  v.  Kukuk. 
U.  S.  Circuit  Court,  District  of  Iowa,  1874.— 3  DUlon,  490. 

1.  Until  a  patent  for  land  emanates,  the  legal  title  thereto  remains  in 

the  United  States,  and  it  will  protect  any  equity  which  the  United 
States  may  have  in  the  land  from  a  sale  for  taxes  by  the  State . 

2.  In  1853,  the  plaintiff"  as  the  assignee  of  aland  warrant,  located  it  upon 

a  tract  of  land  ;  in  1862,  and  before  any  patent  had  issued,  the  proper 
department  canceled  the  warrant  and  saspended  the  location, 
because  the  warrant  had  been  procured  to  be  issued  upon  false  and 
forged  papers ;  the  plaintiff  in  the  latter  part  of  1SG2  substituted 


704  Bronson  v.  Kukuk. 

another  warrant,  and  hi  186:!  received  a  patent.  Hfilil,  that  the  land 
was  not  taxable  for  18<;l,  and  that  a  tax  sale  and  deed  for  the  taxes 
of  that  year  were  void. 
:-5.  The  assignee  of  a  land  warrant  fraudulently  procured  from  the  gov- 
ernment, has  no  higher  legal  rights  than  tlie  warrantee  ;  and  the 
government,  although  the  warrant  is  regular  on  its  face,  is  not  estop- 
ped to  deny  its  validity,  althougii  it  be  in  tiie  hands  of  an  assignee 
for  value  and  without  notice. 
Before  Dillon.  Circuit  Judge. 

Land  Warrants — Rir/hts  of  Assignees — Taxahility  of  Lands  Lo- 
cated by  FrandvJent  Warrant  Canceled  before  Patent  Issued. 
Ejectment  for  IfiO  acres  of  land.  Trial  to  court.  The  plaintiff 
claims  title  under  a  patent  from  the  United  States  to  himself, 
dated  June  1.  1863.  The  defendant  is  in  possession  under  tax 
deeds,  which  are  regular,  and  vest  the  title  in  the  defendant  if  the 
land  was  subject  to  taxation  under  the  laws  of  the  State  of  Iowa 
for  the  year  1861.  The  defendant  had  no  notice  of  the  defect 
below  mentioned  in  the  plaintitf's  entry  of  the  land. 

On  the  trial  the  plaintiff  offered  in  evidence  a  patent  from  the 
United  States  to  himself,  dated  June  1.  1863,  reciting  that  it  is 
issued  pursuant  to  the  bounty  land  act  of  March  3,  1855.  upon  a 
deposit  of  land  warrant  No.  98.864.  "the  warrant  Nb.  25.269.  act 
of  1850.  with  which  the  first  location  was  made,  having  been  with- 
drawn and  the  said  warrant.  No.  98,864.  substituted  in  lieu  tliereof.*' 
The  plaintiff  then  rested. 

The  defendant  offered  in  evidence  :  1.  Local  land  oflice  certifi- 
cate, dated  December  21,  1853.  that  land  warrant  No.  25,269  in 
the  name  of  Jeremin  Lasnate  had  that  day  been  located  on  the 
land  in  question.  2.  Tax  deed  showing  that  the  laud  was  duly 
sold  in  1862  for  the  taxes  of  1861.  and  other  deeds,  showing  that 
the  defendant  held  the  title,  if  any.  whicli  those  tax  deeds  con- 
veyed.    The  defendant  thereupon  rested. 

The  plaintiff  then  offered  documentary  evidence,  showing  that 
on  the  9th  day  of  May,  1862,  the  Commissioner  of  Pensions 
indorsed  upon  said  land  warrant.  No.  25.269.  the  following : 
"  Satisfactory  evidence  having  been  furnished  me  that  the  papers 
are  false  and  forged  on  which  this  warrant  was  issued,  it  has, 
therefore,  been  this  day  canceled  and  declared  void  as  against  the 
United  States,"  and  immediately  notified  the  Commissioner  of 
the  General  Land  Oflice  thereof.  This  last-named  officer,  June 
18.  1862.  notified  the  register  of  the  local  land  office  "that  warrant 


Bronson  v.  Kukuk.  705 

No.  25,260,  located  December  21.  1853,  b}^  Se^-moar  G.  Bronson, 
was  canceled  May  9,  1862,  because  issued  on  false  and  forged 
papers  :  that  the  location  is  suspended  in  consequence  of  such 
cancellation,  and  the  locator  has  ninety  days  to  substitute  another 
warrant,  or  to  enter  the  tract  with  cash." 

The  time  was  afterwards  extended,  and  the  plaintiff'  within  such 
extended  time,  to  wit,  December  26,  1863.  substituted  (as  recited 
in  his  patent  of  June  1.  1863.  svprc)  said  land  warrant  No.  98.864 
in  lieu  of  cancelled  warrant  No.  25.269.  The  Commissioner  of  the 
General  Land  Office  approved  of  this  substitution  January  9.  1863, 
and  notified  the  local  land  office,  "that  the  patent  would  issue  as 
early  as  practicable,  in  the  name  of  Se3'mour  G.  Bronson." 

It  was  accordingly  issued  June  1.  1863.  and  is  the  onlj-  patent 
for  the  land  in  question  which  was  ever  issued. 

Against  the  defendant's  objection  the  plaintitf  offered  the  records 
of  the  pension  office,  concerning  warrant  No.  25,569,  which  was 
declared  void,  and  said  warrant  No.  98,864,  and  which  tended  to 
show  that  warrant  No.  25,269  was  issued  upon  a  false  and  fraud- 
ulent application  in  favor  of  Jerenin  Lasmate,  when  the  real 
soldier  was  Jeremin  Lasmatre.  to  whom,  for  the  same  service,  a 
warrant  had  already  been  issued  at  the  time  warrant  No.  25.269 
was  issued.     The  land  is  worth  $3,000. 

BrotvjL  c^'-  Dudley  for  the  plaintifi'. 

Gatch.  Wright  <$-  Runnels  for  the  defendant. 

Dillon.  Circuit  Judge  : 

The  plaintiff  located  a  land  warrand  on  the  land  in  controversy 
in  1853,  but  when  in  1862  the  warrant  reached  the  pension  office, 
in  due  course,  it  was  pronounced  to  have  been  issued  on  false  and 
forged  papers,  and  it  was  in  consequence  canceled  on  the  9th  day 
of  May,  of  that  year,  and  the  plaintiff  given  time  to  substitute 
another  warrant,  which  he  did  in  the  latter  part  of  1862,  and 
received  a  patent  for  the  land  dated  June  1,  1863.  Meanwhile,  the 
State  of  Iowa  assessed  this  land  for  taxation  for  the  year  1861, 
and  sold  it  in  1862  for  the  delinquent  taxes  of  the  preceding  year. 
If  the  land  was  subject  to  taxation  for  1861,  the  title  is  in  the 
defendant ;  otherwise,  it  is  in  the  plaintiff.  Unil  the  patent  issued 
the  legal  title  remained  in  the  United  States,  yet  if  "the  right  to 
a  patent  is  complete,  and  the  equitable  title  is  full}'  vested  in  a 
party  without  anything  more  to  be  paid,  or  any  act  to  be  done 
going  to  the  foundation  of  his  right,"  the  land  maj'^  be  taxed, 

45 


706  Bronson  v.  Kukuk. 

thouo;li  no  patent  therefor  has  yet  emanated.  [Railxmy  Co.  v. 
Prescott,  16  Wall.,  603,  608.) 

Assuming  feliat  the  first  warrant  was  procured  from  the  govern- 
ment upon  false  and  fraudulent  papers,  the  location  of  such  a  war- 
rant, if  made  by  the  warrantee,  would  not  give  any  equity  to  the 
land  as  against  the  government.  This  is  clear.  And  since  land 
warrants  are  not  commercial  or  negotiable  instruments,  it  is  equally 
clear  upon  principle  and  authority  {Mechanics'  Bank  v.  New  York, 
4-c.,  Railroad  Co.,  13  New  York,  599,  623  ;  Wilcox  v.  Hoioell,  44 
New  York,  398),  in  the  absence  of  a  controlling  statute,  that  the 
assignee  of  a  warrant  has,  as  against  the  government,  no  higher 
equities  than  the  warrantee.  Not  only  is  thei*e  no  statute  placing 
the  assignee  upon  better  ground  than  the  warrantee,  but  the  act 
of  Congress  making  land  warrants  assignable  only  does  so  to  the 
extent  of  "  vesting  the  assignee  with  all  the  rights  of  the  original 
owner  of  the  warrant."  (Act  of  March  22,  1852  ;  10  Stats,  at 
Large,  3.)  The  first  warrant  was  decided  by  the  proper  officers 
of  the  government  to  have  been  fraudulently  obtained,  and  the 
documentary  evidence  shows  that  this  decision  was  justified  by 
the  facts,  and  it  was  acquiesced  in  b}'^  the  plaintiff. 

If  these  views  are  correct  the  result  is  that  the  location  of  the 
first  warrant  did  not  give  a  complete  equity  to  the  land,  and  if 
nothing  more  had  been  done  the  government  would  have  been 
equitably,  as  it  was  legally,  the  owner  of  the  land,  and  hence  the 
land  was  not  subject,  while  this  condition  of  things  remained,  to 
taxation.  This  condition  did  remain  until  December  26,  1862, 
when  a  valid  warrant  was  furnished  by  the  plaintiff  and  substi- 
tuted for  the  other,  and  it  was  upon  this  warrant  that  the  patent 
was  issued. 

These  views  are  inconsistent  with  the  doctrine  contended  for 
by  the  defendant,  and  which  has  the  sanction  of  the  opinion  of 
Mr.  Attorney  General  Gushing,  that  if  a  land  warrant  has  been 
fraudulently  procured  from  the  government,  and  has  passed  into 
the  hands  of  an  assignee  for  value  and  without  notice  of  the  fraud, 
the  government  is  estopped  to  question  its  validity.  (7  Opinions 
Attorney  General,  657.)  Mr.  Wirt,  as  Attorney  General,  had 
given  a  contrary  opinion,  distinguishing,  as  Mr.  Gushing  failed 
to  do,  between  commercial  and  negotiable  instruments,  which  are 
governed  by  a  peculiar  law,  and  those  which,  like  land  warrants, 
are  not  of  this  character. 

Assuming  that  the  government  is  open  to  estoppel,  the  same 


i 


Bronson  v.  Kukuk.  707 

as  individuals,  the  doctrine  for  whicli  the  defendant  contends  is 
one  which  cannot  be  maintained  on  legal  principles.  It  applies 
only  to  commercial  paper.  If  the  maker  of  an  instrument,  although 
not  of  a  commercial  character,  makes  representations,  aliunde  the 
instrument  on  which  those  to  whom  the  representations  are  made 
act,  the  maker  is  estopped  to  deny  the  truth  thereof;  but  the  mere 
issue  of  such  an  instrument  cannot  alone  operate  to  estop  the 
maker  from  showing  into  whosoever  hands  it  may  come  that  its 
issue  was  procured  by  fraud.  This  subject  is  so  fully  examined 
and  so  satisfactorily  discussed  in  the  New  York  cases  above  cited, 
that  it  is  not  necessary  to  do  more  than  to  refer  to  them. 

Another  position  taken  by  the  defendant's  counsel  is  that,  as 
the  patent  recites  and  the  evidence  shows  that  the  second  warrant 
was  substituted  for  the  first,  this  substitution  has  the  effect  to 
make  the  plaintiff's  title  relate  back  to  the  entry  of  1853.  under 
the  first  warrant.  There  is  no  statute  giving  the  plaintiff  the 
right  to  make  such  a  substitution  or  declaring  the  effect  of  it. 
Natural  justice,  indeed,  would  dictate  that  he  should  have  an 
opportunity  preferably  to  others  to  pay  for  the  land,  and  this  was 
properly  given  to  him  ex  gratia,  not  of  legal  right,  but  as  against 
the  government,  he  cannot  be  regarded  as  having  purchased  and 
paid  for  the  land  until  he  located  a  valid  warrant  upon  it,  and 
until  payment  for  the  land  had  been  made  it  was  not  taxable. 

It  is  insisted,  however,  for  the  defendant  that,  although  it  be 
true  that  as  against  the  government  the  sale  of  the  land  for  taxes 
was  not  valid,  yet  the  plaintiff  is  estopped  as  against  the  defendant 
from  asserting  such  invalidity.  But  why?  The  plaintiff  has  had 
no  transaction  with  the  tax  title  purchaser  or  with  the  defendant 
claiming  under  the  tax  title  purchaser.  He  has  made  no  repre- 
sentations to  either  of  them,  and  they  have  no  covenant  of  his, 
nor  is  there  any  grant  or  warranty  by  him  so  that  his  title  acquired 
by  the  location  of  the  second  warrant  and  the  patent  will  enure 
to  them.  A  purchaser  at  tax  sale  buys  upon  his  own  suggestion 
and  at  his  own  risk  as  to  the  title  he  obtains,  and  a  subsequently 
acquired  title  does  not  enure  to  his  benefit.  There  must  be  a 
judgment  for  the  plaintiff.  Judgment  for  plaintiff. 

Note.— In  the  sale  of  a  land  warrant,  there  is  an  imp  ied  warranty  that 
it  is  valid,  and  if  the  department  cancel  it,  the  money  paid  for  it  may  be 
recovered  back.     Frexbury  v.  Morris,  18  Mo..  165. 

An  action  on  a  guarantee  with  the  sale  of  a  warrant,  may  be  com- 


708  Calder  v.  Kebqan. 

mcncod  as  soon   as  tlie  conimissionw    decides  Miat   riie    assignment  is 
forged,     ./o/iiinon  v.  Gitfiilan,  S  Minn.,  39"). 

'The  purchaser  of  a  warrant  under  a  forged  assignment,  obtains  no 
title  to  the  warrant.  Dvkev.  Bahne^  16  Minn.,  ;W(i.  But  a  botni  fide 
piu-chase  of  a  warrant  for  value  without  notice,  who  has  located  it  and 
obtained  a  patent,  will  not  be  held  as  trustee  of  the  land  for  tiie  true 
owner  of  the  wan-ant,  because  the  warrant  was  obtained  by  fraud  and 
the  assignment  of  it  forged,  but  the  real  owner  of  the  warrant  is  entitled 
to  recover  the  value  of  the  warrant  at  the  time  of  its  conversion  ;  the 
good  faith  in  purchasing  it  is  no  <lefense  to  this  legal  demand.  J>ix(m 
V.  C^ihlwcU,  15  Ohio  St.,  412. 

The  title  to  warrants  will  not  pass  by  delivery  without  assignment. 
Holland  V.  Heidiley,  4  Iowa,  222.  But  if  the  warrant  is  assigned  in  blank, 
and  sold  by  one  not  authorized  to  sell  it,  the  true  owner  cannot  recover 
the  land  located,  but  may  recover  the  value  of  the  warrant  fi-om  the 
locator.     Fort  v.   Wihox,  8  Iowa,  153. 

The  owner  of  a  bounty  land  warrant  sold  the  same,  but  neglected  to 
execute  an  assignment  The  purchaser  of  the  warrant  located  it  in  the 
name  of  the  former  owner,  and  the  patent  issued  to  him.  Hdd^  that  the 
patentee  held  the  land  in  trust  for  the  purchaser  and  locator  of  the  war- 
rant.    Kei/v.  JeindtKjs,  fi6  Mo.,  o;")6. 

Where  a  location  was  canceled,  because  the  warrant  was  declared 
fraudulent  by  the  Commissioner  of  Pensions,  and  the  cancellation  was 
afterward  rescinded,  it  is  evidence  that  the  location  was  wrongfully  can- 
celed, and  where  the  land  was  entered  in  the  meantime  by  another,  and 
a  patent  issued  thereon,  a  decree  will  be  entered  placing  the  title  in  the 
first  locator.     Aldrk-h  v.  Ahirich.  37  111.,  32. 

Held  the  same  in  case  of  an  alleged  forged  assignment.  Klcm  v.  Argen- 
brii/Iif^  2(}  Iowa,  49;>  ;  also  see.  Bates  v.  Hinoii,  3.i  Ala.,  117. 


Calder,  trustee,  etc.,  v.  Keegan. 
•Supreme  Court  of  Wisconsin,  January  'I'erm,  1872.-30  Wisconsin.  126. 

Public  Lauds — Liahility  to   T<(xation. 

Where  land  of  the  United  States  has  been  entered  under  a  spurious  war- 
rant, "and  the  entry  suspended  to  give  the  locator  opportunity  to 
substitute  a  valid  warrant  or  pay  the  price  in  money,  the  land  is  not 
subject  to  taxation  by  the  State— such  locator  having  no  title  to  it, 
legal  or  equitable. 

Appeal  from'  the  Circuit  Court  for  Green  County. 

Action  of  ejectment.  Complaint  in  the  usual  form.  The  answer 
alleged  title  and  possession  in  defendant  under  a  tax  deed.  It 
appeared  in  evidence  that  the  land  in  controversy  was  located 
at  the  Mineral  Point  land  office,  by  one  Ansley,  July  24,  1854, 


i 


Calder  v.  Keegan.  709 

ami  tliat  on  the  inth  of  .lanuary,  1856.  the  certificate  of  location 
was  assigned  to  the  plaintiff  Calder.  as  trnstee  of  Mar}'  Jane 
Bramwell.  After  the  certificate  of  location  was  issued  and  before 
the  year  1867.  but  at  what  precise  time  does  not  appear,  the  issuing 
of  the  patent  was  suspended  at  the  General  Land  Office  in  Washing- 
ton, on  the  ground  that  the  warrant  on  which  the  land  was  located 
had  been  issued  on  fi*audulent  papers.  It  was  shown  that  the 
practice  of  the  land  oflfice  was  not  to  cancel  locations  in  such  cases, 
but  to  hold  them  in  suspension  for  a  reasonable  time,  extending 
in  the  meantime  to  the  locator  or  his  assignee  the  privilege 
of  making  good  the  spurious  land  warrant,  either  by  remedying 
the  defect  in  the  transfer  of  the  warrant  located,  or  by  furnishing 
a  substitute  warrant  of  the  same  denomination  and  free  from 
objection,  or  hy  payment  of  the  cash  price  of  $1.25  per  acre,  in  lieu 
of  the  warrant. 

It  was  also  shown  that  on  the  3d  of  June,  1867,  a  patent  was 
duly  issued  to  Calder  for  the  landin  question,  he  having  made  good 
the  consideration  by  payment  of  the  cash  price.  In  1860  the  land 
was  assessed  for  taxes,  and  in  1861  it  was  sold  by  the  treasurer 
of  Green  county,  and  on  September  21,  1864,  one  James  Smith, 
grantor  of  defendant,  received  a  tax  deed,  under  which  he  went 
into  possession,  made  impx'ovements  and  afterward  conveyed  to 
defendant.  The  action  was  tried  before  the  court  without  a  jury  ; 
finding  for  plaintiff  and  jndgment  accordingly,  from  which  defen- 
dant appealed. 

B.  Dumviddif  for  appellant. 

Smith  <$•  Henry  and  P.  A.  Orion,  jr.,  contra. 

Dixon,  C.  J. : 

The  position  taken  by  counsel  for  the  defendant  with  respect 
to  the  taxability  of  the  land,  is  incorrect  and  cannot  be  sustained. 
The  land  belonged  to  the  United  States  at  the  time  the  supposed 
taxes  were  levied,  and  so  was  not  liable  to  taxation.  It  was  a  case 
of  suspended  entry  under  a  spurious  land  warrant,  where,  under 
the  practice,  as  shown  by  the  letters  of  the  Commissioner  of  the 
General  Land  Office,  contained  in  the  record,  no  title  whatever 
passed  to  the  locator  or  to  his  assignees  of  the  certificate  until  the 
same  was  actually  paid  for,  either  by  the  substitution  of  another 
and  a  valid  warrant  of  the  same  denomination,  or  the  substitution 
of  cash  for  the  warrant  at  the  rate  of  $1.25  per  acre. 

After  the    suspension,  which   was   merely  for  the  purpose   of 


710  Donovan  v.  Klokb. 

giving  the  locator  due  notice  and  reasonable  time  to  i)ay  for  the 
land  as  above  stated,  and  before  cancellation  of  the  entry,  the 
title  was  held  by  the  United  States,  subject  to  be  acquired  in  that 
way  by  the  locator  or  his  assignees  of  the  certificate,  as  a  matter 
of  mere  grace  or  favor  to  him  or  them.  There  was  no  contract 
relation  between  the  United  States  and  the  locator  by  which  the 
United  States  was  bound  to  sell  him  the  land  or  to  issue  a  patent 
therefor  to  him  or  his  assigns,  on  payment  or  tender  of  the 
money  or  of  another  land  warrant  of  the  same  denomination. 

In  such  case  it  seems  idle  to  talk  about  the  locator  having  any 
taxable  interest  in  the  land,  or  that  the  title  of  the  United  States 
was  any  more  subject  to  be  interfered  with  by  the  State  power  of 
taxation,  than  if  no  steps  whatever  had  been  taken  by  the  govern- 
ment towards  a  sale  or  disposition  of  it.  The  right  of  the  States 
to  interfere  in  any  manner  so  as  to  cut  off  or  defeat  tlie  title 
emanating  by  patent  from  the  United  States  in  cases  like  this, 
has  been  very  emphatically  denieH  by  the  supreme  court  in  a  recent 
decision,  and  a  printed  copy  of  the  opinion  is  now  lying  before 
us.  {Gibson  v.  Chouteau,  13  Wallace,  92.)  We  regard  that  case 
as  decisive  of  the  question  here  presented,  and  as  showing  that 
the  State  could  not  step  in  and  tax  the  land  by  anticipation,  and 
that  the  doctrine  of  relation  by  which  the  supposed  holder  by  tax 
deed  would  deprive  the  purchaser  of  his  title  obtained  from  the 
United  States,  is  wholly  inapplicable,  and  cannot  be  made  to 
answer  any  such  inequitable  and  unjust  purpose.  It  is  generally 
enough  for  people  to  pay  taxes  upon  land  after  they  have  obtained 
the  title,  without  being  compelled  to  forfeit  their  estate  or  to  pay 
those  assessed  whilst  it  was  owned  by  the  United  States  and  before 
they  had  acquired  any  interest,  legal  or  equitable,  in  it. 

By  the  court :  Judgment  affirmed.  ■ 


Michael  Donovan  v.  John  Kloke. 
Supreme  Court  of  Xebraska,  October  Tenn,  1S77. — C-  Nebraska.  124. 

PiihJic  I/mds;  Tuxaficn  r//'.— Lands  purchased  from  tlie  United  States  by 
private  entry  are  subject  to  taxation,  as  soon  as  the  sale  is  com- 
pleted by  the  payment  of  the  purchase-money.  But,  until  this  time 
the  land  is  not  so  liable,  and  every  step  taken  by  way  of  the  assess- 
ment or  levy  of  taxes  is  void. 

;   Purchase  o/.— The  plaintiff,    in   ISCiO.  purchased    at    private 


Donovan  v.  Kloke.  711 

entry  the  southeast  quarter  of  a  section  of  public  lands,  and  received 
the  usual  certificate.  In  1878,  this  entry  was  canceled,  and  he  was 
permitted  to  enter  in  lieu  thereof,  the  northeast  quarter  of  the  same 
section.  But  instead  of  issuing  to  him  a  new  certificate,  the  old  one 
numbered  'i.orjS,  was  so  chanoed  by  writing  across  its  face  as  to 
make  it  apply  to  the  latter  tract,  but  without  changing  its  date. 
Held,  that  by  tliis  transaction  as  to  the  northeast  quarter,  the  plain- 
tiff became  the  owner  in  1S7;{,  and  not  in  ISCi).  the  date  of  the  certi- 
ficate. 

3. ;  ;  Cerli  ficaie  of  purchase  ;  Change  of. — VV  here  a  certificate 

of  purchase  is  so  changed,  it  will  be  given  the  same  effect  as  if  it 
were  actually  issued  at  the  date  of  such  substitution. 

Appeal  from  the  District  Court  of  Cuming  County. 

Tried  below  l)efore  Savagk,  J. 

The  opinion  states  the  facts  in  the  case. 

Uriah  Bruaer  for  appellant. 

The  admission  of  the  testimony  to  show  the  error  in  the  entry 
is  incompetent  and  irrelevant. 

Where  contracts  have  an  ascertained  and  fixed  meaning,  the 
acts  of  the  parties  under  which  the  contracts  are  made  are  inad- 
missable.  {GiUs  v.  CovistocA\  4  N.  Y..  270:  1  Best  on  Ev.,  223, 
and  citations. 

Recitals  in  a  deed  are  binding  upon  all  claiming  under  the  deed. 
{Douglas  v.  Scott,  Ti  Ohio,  194  ;  Dean  v.  Brewer,  1  N.  J.  L..  (Coxe) 
172  ;  Inslceep  v.  Shields,  4  Harr.,  (Del.),  345  ;  Byrne  v.  Moorehouse, 
22  111.,  603  ;  McLesky  v.  Leadbetter,  1  Ga.,  551 ;  Stetvart  v.  Butler, 
2  Serg.  &  R..  381  ;  Jacksov  x.  Parkhursf.  9  Wend.,  209.) 

A  party  shall  not  claim  an  interest  under  an  instrument  with- 
out giving  full  effect  to  that  instrument  as  far  as  he  can.  (Wil- 
lard's  Eq.  Jur.,  545.) 

An  order  of  a  court  authorizing  a  sale  of  real  estate  made  sub- 
sequent to  the  sale,  cannot  be  given  in  evidence  to  sustain  such 
sale.     [Lessee  of  Lxdloiv's  Heirs  v.  Park.  4  Ohio.  5.) 

Parol  evidence,  or  other  extrinsic  evidence,  is  not  admissible 
to  var3%  contradict,  or  explain  the  contents  of  a  contract,  except 
for  ambiguity  or  uncertainty  apparent  on  the  face  thereof.  (1 
Greenl.  Ev..  275-6-7,  282.)  Parol  evidence  is  admissible  to  explain 
a  latent  ambiguity  in  the  deed.  (1  Greenl.  Ev..  284-6.  297  to  300  ; 
Best  on  Ev.,  226.) 

The  land  is  taxable.  {Franklin  v.  Kelly,  4  Neb.,  90;  Carrol  y. 
Sajford,  2  How.,  441.) 


712  Donovan  v.  Kloke. 

Craicford  t*}-  McLaughlin  for  appellee. 

The  plaintiff's  entry  of  the  southeast  quarter  was  canceled  and 
the  money  ordered  to  be  refunded  to  him.  or,  if  he  preferred,  he 
could  have  the  northeast  quarter,  and  he  decided  to  take  the  lat- 
ter, and  the  local  officers  instead  of  giving  plaintiff  a  new  certifi- 
cate amended  the  old  one,  and  now  the  attorney  for  defendant, 
who  was  then  receiver  of  the  land  office,  and  wlio  amended  the 
certificate  when  it  was  his  duty  to  issue  a  new  one  and  canceled 
the  old,  insists  that  plaintiff  became  the  owner  of  the  northeast 
quarter  in  1869,  instead  of  1873  ;  that  by  his  act  of  amending 
said  certificate  he  legalized  taxes  that  were  illegal  and  void. 

We  need  cite  no  authorities  to  convince  this  court  that  such  a 
proposition  is  untenable  ;  nor  do  we  deem  it  necessary  to  notice 
the  authorities  cited  by  defendant  further  than  to  say,  that  they 
have  no  more  application  to  this  case  than  any  other  case  before 
this  court. 

Lake,  Ch.  J. : 

This  is  an  appeal  from  a  decree  of  the  district  court  for  Cuming 
county  perpetually  enjoining  the  defendant  and  his  successors  in 
office  from  executing  or  delivering  a  tax  deed  for  the  northeast 
quarter  of  section  one.  township  twenty-three,  range  seven  east, 
in  pursuance  of  a  tax  sale  of  the  land  for  taxes  levied  for  the 
year  1872,  and  the  main  question  presented  for  our  decision  is, 
whether  this  land  was  liable  to  taxation  for  that  year. 

Donovan  purchased  this  land  directly  from  the  United  States 
by  private  -entry,  and  it  was.  of  course,  subject  to  taxation  as 
soon  as  the  sale  was  completed  133'  the  payment  of  the  purchase 
price.     {Bellinger  v.  White,  5  Neb.,  399.) 

But  until  this  time  the  land  was  not  so  liable,  and  every  step 
taken  by  the  local  county  officers,  by  way  of  the  assessment  of 
the  lands  for  taxation  or  the  levy  of  taxes  was  absolutely  void. 
The  ownership  of  the  land,  therefore,  at  the  time  of  the  levy  of 
the  taxes  complained  of,  is  the  important  fact  to  be  settled. 

The  testimony  bearing  upon  the  question  of  ownership  is  brief 
and  not  at  all  conflicting.  It  appears  from  the  evidence  of  Dono- 
van, on  the  third  day  of  April,  1869,  at  the  local  land  office  of  the 
United  States  at  Omaha,  entered  and  paid  for  the  southeast  quar- 
ter of  the  above-mentioned  section,  and  received  the  usual  certifi- 
cate therefor.  By  mistake,  however,  of  the  register,  this  pur- 
chase was  entered  upon  the  tract-book  as   being    the  northeast 


Donovan  ».  Kloke.  713 

quarter  of  the  section,  but  the  records  of  the  receiver  and  the 
report  of  the  sale  transmitted  to  the  general  office  at  Washington, 
conlbrmed  to  the  certificate,  and  were  correct.  By  another  mis- 
take of  the  local  officers,  Donovan's  entry  conflicted  with  a  prior 
one  made  June  3,  1868,  on  the  same  land,  by  one  Gustave  Kom- 
snoski,  and  for  this  reason  was  duly  canceled  by  the  Commis- 
sioner of  the  General  Land  Office  on  the  fourteentli  of  Marcli,  1873, 
as  appears  b3-  his  letter  of  that  date.  At  this  time,  and  by  this 
very  letter,  Donovan  was  given  the  option  either  to-  take  the 
northeast  quarter,  which  was  then  subject  to  private  entry,  or.  if 
he  preferred  it.  a  return  of  the  money  paid  for  the  land  he  liad 
actually  purchased.  Me  decided  to  take  the  land,  and  the  patent 
under  which  he  holds  the  legal  title  to  the  land  in  controversy, 
was  issued  to  him  in  pursuance  of  this  arrangement. 

By  the  terms  of  the  option  given  to  Donovan,  he  was  required 
to  make  his  election  as  to  which  he  would  take,  within  thirty 
days,  and  his  ownership  would  date  from  the  time  that  he  did  so. 
It  is  clear,  therefoi-e,  that  up  to  this  time,  this  land  was  the  prop- 
erty of  the  United  States,  and  any  steps  taken  to  encumber  it  by 
the  levy  of  taxes  or  sale  to  enforce  their  paj-ment,  would  be 
absolutely  void  as  against  both  the  government  and  its  grantee. 

We  entertain  no  doubt,  whatever,  that  the  alleged  levy  of  taxes 
for  the  year  1872.  and  the  sale  thereunder,  were  not  only  in  vio- 
lation of  the  first  section  of  our  revenue  act.  which  declares  that 
the  property  of  the  United  .States  -  shall  be  exempted  from  taxa- 
tion," but  also  of  the  compact  entered  into  between  the  State  and 
the  general  government  at  the  time  of  our  admission  into  the 
Union,  "  that  no  taxes  shall  be  imposed  by  said  State  on  lands 
or  property  therein  belonging  to.  or  which  may  hereafter  be  pur- 
chased by,  the  United  States."  • 

It  was  urged  with  much  earnestness  by  defendant's  counsel 
that,  inasmuch  as  the  patent  for  this  land  recites  the  original  cer- 
tificate, No.  2,558,  issued  to  Donovan  at  the  time  of  his  entry,  in 
April,  1869,  he  is  estopped  from  denying  that  his  ownership  dates 
back  to  that  time.  Ordinarily,  this  would  be  the  proper  construc- 
tion to  apply  to  such  a  recital,  but  it  is  not  applicable  to  a  case 
where,  as  here,  it  is  shown  by  the  certificate  and  other  satisfactory 
evidence,  that  a  mistake  had  occurred,  resulting  in  the  cancella- 
tion and  loss  of  the  first  purchase,  and  that,  by  a  mutual  arrange- 
ment between  the  government  and  purchaser,  as  late  as  August 
12,  1873,  the  certificate  was  so  changed  as  to  make  it  apply  to 


/ 


714  Donovan  y.  Klokb. 

otlier  land  taken  in  lien  of  that  first  entered.  The  change  noted 
on  certificate  No.  2.r)!')S,  is  in  these  words  :  "  Amended  to  read 
northeast  quarter-section  one,  township  twenty-three,  range  seven 
east,  August  12,  1873,"  and  signed  by  the  receiver  of  the  land 
oftice.  This  change  was'  made  in  pursuance  of  the  arrange- 
ment before  mentioned  between  the  commissioner  and  Donovan, 
by  which  the  land  in  controversy  was  substituted  for  that  origi- 
nally purchased,  and  the  certificate  so  changed  must  be  given  the 
same  eflect  as  if  it  were  actually  issued  at  the  date  of  such  sub- 
stitution. 

The  holding  of  the  district  court  having  been  in  conformity 
with  these  views,  was  right ;  and  a  decree  will  be  entered  in  this 
court  making  the  injunction,  heretofore  granted  perpetual. 

Decree  accordingly. 

No TK. — A  chaii.^e  of  entry  c;innot  be  made  to  land  entered  by  another, 
Ijetween  the  date  of  the  first  entry  and  the  chaag-e.  liaukin  v.  Miller.,  43 
Jowa.  11 . 

'I'he  commissioner  is  authorized  to  allow  a  change  of  entry  to  be  made, 
only  in  cases  where  the  mistake  occurred  in  the  "■  true  numbers  "  of  the 
land  intended  to  be  entered.  If  one  enter  the  numbers  intended,  there 
is  not  the  mistake  contemplated  by  the  act,  because  the  numbers  do  not 
include  land  which  the  purchaser  supposed  was  embraced  in  the  num- 
bers entered.  And  in  any  event  the  change  can  onl}'  be  allowed  to  cover 
unsold  public  land. 

[f  the  land  intended  to  have  been  entered,  l)as  in  the  meantime  been 
entered  hj  another,  such  entry  cannot  be  canceled  to  make  room  for  a 
change  of  entry.  And  where  the  commissioner  canceled  an  entry  to 
allow  a  change  of  entry  to  the  land,  the  change  not  being  authorized 
•by  law  is  null  and  void,  and  the  patent  issued  on  such  change  of  entry 
is  void  in  a  court  of  law.     Mortin  v.  Blankers/np,  .5  Mo.,  ^'40. 

An  entry  by  mistake  of  lands  previously  sold  by  the  United  States 
■does  not  entitle  such  person  to  a  change  of  entry.  Carmnu  v.  Johnson, 
29  Mo.,  S4. 

A  conditional  entry  cannot  be  allowed  by  the  register  and  receiver. 
An  entry  once  made  cannot  be  changed  so  as  to  interfere  with  the  rights 
of  others.     McDmdel  v.  Ortoii,  12  Mo.,  12. 

\Vhere  a  pre-emption  right  has  been  once  claimed,  it  cannot  be  trans- 
ferred to  another  tract  to  the  injury  of  other  settlers,  although  the  pre- 
emptor  might  originally  have  claimed  either  tract.  Keller  v.  Belleatideau, 
-6  T.a.  .\nn..  '148. 


Verden  v.  Coleman.  715 

Saimtjel  Vekden,  appellant,  v.  Isaac  Coleman. 
December  Term,  is.-)!).— -i'i  Howard.  11)2;  :^  Miller. 'iST. 
.hni.'idictiiiii  over  State  Coiirts. 

An  apix'al  from  a  decree  of  a  State  court  dismissed,  because  no  case  can 
be  brought  here  from  a  State  court  in  any  other  mode  than  by  writ 
of  error. 

Appeal  from  the  Supreme  Court  of  Indiana. 
No  writ  of  error  was  sued  out  or  filed. 
The  opinion  states  the  facts. 

Mr.  Justice  Catkox  delivered  the  opinion  of  the  court. 

Coleman  sued  Verden  in  a  State  court  of  Indiana,  on  a  note  of 
hand,  and  a  mortgage  of  lands  to  secure  its  paj^ment.  On  various 
pleadings  and  proofs,  the  cause  was  submitted  for  judgment  to 
the  court,  the  parties  having  dispensed  with  a  jnry.  Judgment 
was  rendered  against  Verden,  who  appealed  to  the  Supreme  Court 
of  Indiana.     There   the  judgment  of  the  circuit  was   affirmed. 

This  occurred  on  the  26th  da}'  of  June,  1858.  And  then  we 
find  the  following  entry  of  record  : 

"And  afterwards,  to  wit,  at  a  court  began  and  held  on  the  'l^th 
of  May,  1858,  and  continued  from  day  to  day  till  July  16th,  1858, 
at  which  time  comes  the  appellant,  by  Hon.  D.  Mace,  his  attornej', 
and  prays  an  appeal  to  the  United  States  Supreme  Court,  which 
pra3'er  is  granted." 

Bond  was  given  to  prosecute  the  appeal,  and  the  clerk  certifies 
the  record  to  be  a  true  copy  of  the  proceedings. 

No  appeal  can  be  taken  from  the  final  decision  of  a  State  court 
of  last  resort,  under  the  twenty-fifth  section  of  the  Judiciary  Act, 
to  the  Supreme  Court  of  the  United  States.  A  writ  of  error  alone 
can  bring  up  the  cause.  We  refer  to  the  appendix  of  Curtis' 
Digest  for  the  mode. 

It  is  ordered  that  the  case  be  dism  issed. 


Semple  v.  Hagak. 
December  'I'erm,  ISCG.— 4  Wallace,  431. 

1.  When  a  want  of  jurisdiction  is  patent,  or  can  be  readily  ascertained 
bv  an  examination  of  the  record  in  advance  of  an  examination  of  the 


716  Semple  v.  IIagar. 

questions  on  tlic  argiiiiKMit  of  the  merits,  this  court  will  entertain 
,  and  act  npon  a  motion  to  dismiss  for  want  of  jnrisdlction. 
2.  Where  two  parties  held  patents  for  land  from  the  United  States,  nnder 
Mexican  orants,  both  of  which  included  tlie  same  lands  in  part,  and 
one  of  the  parties  brought  a  suit  in  a  State  coiut-  to  vacate  tlie  patent 
of  the  other,  to  thi'  extent  of  the  conflict  of  title,  and  tlie  St-.ite  court 
refused  to  entertain  jurisdiction  of  the  question,  and  dismissed  the 
complaint,  this  court  has  no  jurisdiction  under  the  twenty-fifth  sec- 
tion of  the  .Judiciary  Act,  to  review  the  judgments. 

Semple  filed  a  bill  against  Hagar  in  one  of  the  State  courts  of 
California.  The  bill  alleged  that  he,  the  complainant  Semple,  had 
obtained  a  patent  from  the  United  States  for  a  tract  of  land, 
based  itpon  a  Mexican  grant  for  the  same  land,  known  as  the 
"Coins"  grant;  that  the  land  so  granted  had  been  surveyed  by 
the  United  vStates,  and  included  certain  lands  enumerated  ;  that 
the  defendants  claimed  part  of  the  same  land  under  a  Mexican 
grant  known  as  the  "Jimeno"  grant,  for  which  a  patent  had  also 
been  issued  by  the  United  States  to  the  defendants  ;  that  the  sur- 
veys of  the  said  grants  overlapped  ;  that  the  grant  of  the  -Jimeno  " 
tract  had  been  obtained  by  fraud  and  was  a  cloud  on  the  complain- 
ant's title.  The  prayer  of  the  bill  was  that  the  court  might  declare 
"the  said  fraudulent  grant,  commonly  called  the  'Jimeno  Rancho, 
void  and  of  no  effect,  as  issued  upon  false  suggestions,  and  with- 
out authority  of  law." 

The  defendant  demurred  to  this  bill,  setting  forth  nine  several 
grounds  of  demurrer,  and  among  them  these  : 

1st.  That  the  court  had  no  jurisdiction  of  the  s'ubject  of  the 
action. 

2d.  That  there  was  a  defect  of  parties  plaintiff. 

3d.  That  there  was  a  defect  of  parties  defendant. 

The  court  below  made  a  decree  dismissing  the  bill ;  a  decree 
which  on  appeal  the  Supreme  Court  of  California,  the  highest 
court  of  equity  of  the  State,  affirmed . 

The  case  was  then  brought  here  as  being  within  the  twent}'^ -fifth 
section  of  the  Judiciary  Act,  which  enacts  that  the  final  decree  in 
the  highest  court  of  law  or  equity  of  a  State,  &c.,  where  there  is 
drawn  in  question  the  validity  of  an  authority  exercised  under 
the  United  States  and  the  decision  is  against  the  validity,  or 
drawn  in  question  the  construction  of  any  clause  of  a  statute  or 
commission  held  under  the  United  States,  and  the  decision  is 
against  the  title  specially  set  up  by  either  party  under  such  statute 
or  commission,  may  be  reviewed  in  this  court. 


SeMPLE  v.  HA(iAR.  717 

Mr.  Wills,  for  the  defendunt  in  error,  now,  and  in  advance  of  the 
case  beinu'  re<Tnlarly  called,  moved — the  record  being  a  short  one, 
and  of  but  ten  pages — to  dismiss  the  writ  of  error  for  want  of 
jurisdiction. 

He  thus  artrued  : 

1.  The  State  courts  of  California  had  no  jurisdiction  of  the 
subjectof  the  action.  This  court  has  held,  in  Field  v.  Seabury  (19 
Howard.  382),  that  the  question  of  the  validity  of  a  patent  for 
land  is  '"a  question  exclusively  between  the  sovereignly  making 
the  grant  and  the  grantee.'"  The  courts  of  California,  carrying 
out  this  doctrine,  have  held  that  *'  a  patent  imports  absolute  verity, 
and  that  it  can  only  be  vacated  and  set  aside  by  direct  proceed- 
ings instituted  by  the  government,  or  by  ))arties  acting  in  the 
name  and  by  the  authority  of  the  government."'  {Leeae  \.  Clarke, 
18  California,  571  ;  Same  v.  S((me,  20  Jd..  423  ;  see.  also,  Beard 
V.  Federy,  3  Wallace,  479.) 

2.  It  has  been  decided  by  the  court  in  Morelaiid  v.  Paye  (20 
Howard,  522),  that  this  court  has  not  jurisdiction,  under  the 
twenty-fifth  section  of  the  Judiciary  Act,  to  review  the  judgment 
of  a  State  court,  when  the  question  involved  relates  to  the  proper 
boundary  between  two  tracts  of  land,  although  the  owners  of- 
both  had  valid  grants  from  the  United  States. 

Mr.  Reverdy  JoJinsun,  for  the  plaintiff  in  error,  contra,  argued 
in  support  of  the  jurisdiction,  contending,  also,  that  the  question, 
whether  the  jurisdiction  did  or  did  not  exist,  was  one  which  the 
court  would  not  settle  in  this  preliminarj'^  way  ;  that  the  question 
could  not  be  settled  without  a  thorough  examination  of  the  record  ; 
and  that  this  could  not  be  made  until  the  case  came  up  in  regular 
order ;  that  then,  when  the  court  would  understand  the  whole 
matter,  it  could  better  decide  the  delicate  matter  of  jurisdiction. 

^Ir.  Justice  Gkiek  delivered  the  opinion  of  the  court. 

In  all  cases  of  a  motion  to  dismiss  the  writ  of  error  for  want 
of  jurisdiction,  the  court  must  necessarily  examine  the  record  to 
find  the  questions  decided  by  the  State  court.  But  in  many  cases 
the  (piestion  of  jurisdiction  is  so  involved  with  the  other  ques- 
tions decided  in  the  case,  that  this  court  cannot  eliminate  it  with- 
out the  examination  of  a  voluminous  record,  and  passing  on  the 
whole  merits  of  the  case.  In  such  instances  the  court  will 
reserve  the  question  of  jurisdiction  till  the  case  is  heard  on  the 
final  argument  on  the  merits. 


718  Verden  v.  Coleman. 

In  the  case  before  ns,  the  want  of  jurisdiction  is  patent ;  it 
requires  no  investicjation  of  a  long  bill  of  exceptions  ;  it  was  not 
decided  by  the  court  below  on  its  merits,  if  it  had  any.  It  fur- 
nishes no  reason  for  a  postponement  of  our  decision  of  the  ques- 
ti(jn . 

If,  in  such  cases,  the  coui't  would  postpone  the  consideration  of 
the  question  of  jurisdiction,  we  would  put  it  in  the  power  of  every 
litigant  in  a  State  court  to  obtain  a  stay  of  execution  for  three 
years  or  more,  by  a  frivolous  preteace  that  it  comes  within  the 
provisions  of  the  twenty-fifth  section  of  the  Judiciary  Act.  In 
many  States  all  the  land  titles  originated  in  patents  from  the 
United  States ;  and  if  every  question  of  boundary,  of  descent, 
of  construction  of  wills,  of  contracts,  &c.,  and  which  may  arise 
in  State  courts,  may  be  brought  here  on  the  mere  suggestion  that 
the  party  against  whom  the  State  court  gave  their  judgment, 
derived  title  under  a  patent  from  the  United  States,  we  should 
enlarge  our  jurisdiction  to  thousands  of  cases,  and  increase, 
unnecessarily,  the  burdens  of  this  court,  with  no  corresponding 
benefit  to  the  litigant.  It  is  plain  that,  in  such  cases,  there  is 
not  "  drawn  in  question  the  validity  of  a  treaty  or  statute  of,  or 
an- authority  exercised  under,  the  United  States." 

We  have  hei'e  a  very  brief  record,  and,  on  the  facts  of  the  case, 
we  cannot  shut  our  eyes  to  the  total  want  of  jurisdiction,  under 
the  twenty-fifth  section,  or  any  other  section  of  the  Judiciary  Act. 

It  is  plain  that,  if  the  court  had  assumed  jurisdiction,  and  had 
declared  the  defendant's  patent  void,  for  the  reason  alleged  in 
the  bill,  the  defendant  would  have  had  a  case  which  might  have 
been  reviewed  by  this  court,  under  the  twenty -fifth  section,  and 
one  on  which  there  might  have  been  a  question  and  ditference  of 
opinion.  But  it  is  hard  to  perceive  how  the  twenty -fifth  section 
could  apply  to  a  judgment  of  a  State  court,  which  did  not  decide 
"  that  question,  and  refused  to  take  jurisdiction  of  the  case.  The 
matter  is  too  plain  for  argument.  Motion  granted. 


Verden,  plaintiff  in  error,  v.  Coleman. 

December  Term,  1861.— 1  Black,  472  ;  4  Miller,  551. 

Jurisdiction  over  Jvdgmeids  of  State  Courts. 

1.  The  defence  to  a  mortgage  foreclosure  suit  in  a  State  court  was,  that 
to  part  of  the  land  for  which  the  mortgage  was  given  the  plaintiff 


Verden  v.  Coleman.  719 

had  no  title,  because  the  land  for  which  he  had  a  patent  from  the 
government  had  been  assigned  to  an  Indian  under  the  treaty.  This 
gives  no  jurisdiction,  because  the  decision  was  in  favor  of  the  title 
set  up  under  tlie  United  States. 
2.  'Ihe  cliilni  of  the  Indian's  right  under  the  treaty  can  only  give  juris- 
diction when  assailed  by  some  one  claiming  under  it,  and  not  when 
set  bj'  a  stranger.     Henderson  v.  Tennensee.  10  H.,  31 1,  (IS  (  urtis,  40.j.) 

Writ  of  error  to  the  Supreme  Court  of  Indiana. 
Mr.  Gillet  and  Mr.  Mace  for  plaintiff. 
Mr.  Bdird  for  defendant. 

Mr.  Justice  CtRIek  delivered  the  opinion  of  the  court. 

Does  this  case  come  within  the  2;)th  section  of  the  Judiciary 
Act? 

The  bill  filed  in  the  State  court  is  for  the  foreclosure  of  a  mort- 
gage. The  defence  set  up  hy  the  mortgagor  was  the  considera- 
tion of  the  note  whicli  the  mortgage  secured  was  the  purchase- 
mone}^  of  the  land  mortgaged ;  that  the  title  to  one  of  the  tracts 
was  through  a  patent  of  the  United  States  to  Ilannamah  Hewett ; 
that  this  patent  did  not  convey  a  good  title,  because  in  1832  the 
United  States  concluded  a  treaty  of  pui'chase  of  a  large  tract  of 
country  with  the  Pottawatomie  Indians  ;  that  by  the  terms  of  this 
treaty  a  section  was  reserved  for  an  Indian  named  To-pen-na-be, 
to  be  located  under  direction  of  the  President ;  that  before  the 
date  of  the  patent  to  Hewett  for  this  quarter-section  the  wliole 
section,  including  it,  had  been  assigned  to  To-pen-na-be. 

The  patent  was,  nevertheless,  granted  to  Hewett  because  of  a 
prior  equity  by  settlement. 

The  Supreme  Court  of  Indiana  decided  that  the  patent  to  Hewett 
was  a  valid  grant  of  the  land.  This  decision  will  not  bring  the 
case  within  the  25th  section  ;  nor  can  we  claim  it  because  of  the 
title  set  up  under  the  treaty  with  the  Indians,  because  neither 
To-pen-na-be  nor  any  one  claiming  under  him  is  party  to  the  suit. 

This  court  has  decided  in  the  cases  of  Oicings  v.  Norivood,  5 
Cranch,  344,  and  of  Henderson  v.  Tennessee,  10  How.,  311,  that 
"  in  order  to  give  jurisdiction  to  this  court  the  party  must  claim 
the  title  under  the  treaty  for  himself,  and  not  for  a  third  person  in 
whose  title  he  has  no  interest." 

This  case  is,  therefore,  dismissed  for  want  of  jurisdiction. 


720  Wynn  v.  Morris. 

KoBKiri"  II.  Wyxn    executor.  &c.,  c.  Charles  B.  Mokris  et  al. 

December  'ICrni.  IS.IT. — 20  Howard,  H  ;  '2  Miller,  "241. 

Jim'.sdictioii  iindi'i'I'^fh  Ser/ioii  of  the  Jvdirinry  Ad. —  Title  in   Land  derived 
from   United    Siate.t. 

1.  In  a  writ  of  error  to  a  State  court,  it  mu>it   appear  that  the  judgment 

of  the  court  below  was  againist  the  I'ight.  title,  or  claim  asserted 
under  the  Fnited  States. 

2,  There  is  no  jurisdiction   where  the   plaintiff  in  error  shows  no  such 

right,  though  the  defandant  in  error  asserts  such  a  title,  which  is 
affirmed  by  the  State  court  and  contested  by  plj^intitt"  in  error. 
Owini/s-  V.  Aoriroo/I.  r>  (  r..  814;  Hen<l<-i.-«>ii  v.  '/eiinessec,  10  How.,  811. 

Writ  of  error  to  the  Supreme  Court  of  the  State  of  Arkan.sas. 

The  case  is  stated  in  the  opinion  of  the  court. 

Mr.  Pike  for  plaintiff  in  error. 

M7\  Wd-tkins  and  Mr.  Bradley  for  defendants. 

Mr.  Justice  Catron  delivered  the  opinion  of  the  court. 

The  complainant  filed  his  bill  in  a  State  Circuit  Court  in 
Arkansas  to  enjoin  Morris  from  executing  a  writ  of  possession 
founded  on  a  recovery  by  an  action  of  ejectment  for  the  northwest 
quarter  of  section  18.  in  township  16.  south  of  Red  river. 

Wynn  alleges  that  the  wliole  of  the  quarter-section  was  culti- 
vated by  him,  and  had  been  for  years  before  the  inception  of  Mor- 
ris' title,  and  that  he,  Wynn,  claimed  title  to  the  land  through 
the  State  of  Arkansas,  and  that  Morris  had  obtained  a  legal  title 
in  fraud  of  Wynn' s  superior  right  in  equity. 

Morris  claims  through  Keziah  Taylor.  In  1829  and  1830,  when 
the  occupant  law  of  that  jeax  passed,  she  was  a  widow  and  culti- 
vated a  small  farm  on  the  land  in  dispute  ;  she  sold  out  her  pos- 
sessions there  in  the  latter  part  of  1830.  left  the  couutr}- 
secretly  and  settled  permanently  in  the  Mexican  province  of  Coa- 
huila  and  Texas,  and  there  she  remained  without  returning  to 
Arkansas  until  December,  1842,  when  she  made  her  appearance, 
proved  her  cultivation  in  1829,  and  her  continuing  possession  in 
Ma3%  1830,  in  the  form  prescribed  by  the  act  of  that  year,  had  her 
pre-emption  allowed,  entered  the  land,  and  sold  it  to  Morris.  She 
got  a  patent  in  1844. 

The  reason  why  Mrs.  Taylor  did  not  enter  the  land  at  an  ear- 
lier day  was,  that  the  township  No.  16  was  not  surveyed  until 
1841,  and  within  one  year  before  the  date  of  her  entry. 


Wynn  v.  Morris.  721 

Wynn  seeks  a  decree  on  the  ground  that  Morris  procured  Mrs. 
Taylor  to  enter  the  land  for  Morris'  benefit,  when  she  had  no 
right  of  pre-emption,  because  of  the  abandonment  of  her  posses- 
sion for  more  than  ten  years. 

The  register  and  receiver  held  tliat  a  preference  of  entry  was 
vested  by  the  act  of  1830,  and  they  refused  to  investigate  the  fact 
of  abandcminent.  This  opinion  was  concurred  in  by  the  Commis- 
sioner of  the  General  Land  Office.  And  to  correct  this  alleged 
error  the  bill  was  filed.  The  State  Circuit  Court  refused  the  relief 
prayed  ;  adjudged  that  Mrs.  Taylor  obtained  a  valid  title  to  tlie 
land,  and  decx'eed  damages  against  W3'nn  for  detaining  the  pos- 
session. From  this  decree  he  appealed  to  the  Supreme  Court  of 
Arkansas,  where  the  decree  of  the  circuit  court  was  affirmed,  and 
to  that  decree  Wynn  prosecutes  his  writ  of  error  out  of  this  court ; 
and  the  first  question  here  is  whether  we  have  jurisdiction  to  re- 
examine and  reverse  or  affirm  the  decree  of  the  State  courts.  This 
can  only  be  done  in  a  case  where  is  drawn  in  question  the  con- 
struction of  a  statute  of  the  United  States,  &c.,  and  the  decision 
is  against  the  title  set  up  or  claimed  under  the  statute  by  the 
losing  party.  If  Wjmn  had  no  title,  of  course  he  could  Jiot  claim 
under  a  law  of  the  United  States,  and  cannot  come  here  under 
the  25th  section  of  the  Judiciary  Act  of  1789,  merely  to  draw  in 
question  the  decree  which  dismissed  his  bill. 

To  this  effect  are  the  cases  Owmgs  v.  Norwood's  Lessee.  (5  Cr.. 
344;)  Henderson  v.  Tennessee,  10  How.,  311.) 

Wynn  sets  up  a  pretension  of  claim  to  the  land  in  dispute 
through  the  State  of  Arkansas,  which  State  was  authorized  to 
locate  500,000  acres  of  land  by  acts  of  Congress,  passed  in  1841 
and  1842  ;  and  the  complainant  insists  that  he  had  made  a  con- 
tract with  the  State,  through  her  locating  agent.  Charles  E.  Moore, 
who  was  acting  under  instructions  from  the  governor  of  said 
State,  to  the  effect  that  he,  the  complainant,  should  be  allowed  to 
purchase  the  land  from  the  State  at  two  dollars  per  acre.  But 
the  State  did  not  locate  this  quarter-section,  nor  had  it  an  interest 
in  it  at  any  time ;  so  that  the  title  was  outstanding  in  the  United 
States  till  Keziah  Taylor  made  her  entry. 

The  complainant,  Wj-nn,  having  no  intei'est  in  the  land  but  a 
naked  possession,  not  protected  by  an  act  of  Congress,  we  order 
that  his  writ  of  error  be  dismissed  for  want  of  jurisdiction. 

Note. — Same   decision    in  Hickie  v.  Starke,  I    Peters,  94  ;    Fulton  \. 

40 


722  Litchfield  v.  The  Register  and  Receiver, 

M^ Affcfi,  16  Peters.  14"^ ;  Burke  v,  Game.s\  19  Howard,  388  ;  HoIe\.  Gainea^. 
22  Howard,  144;  and  Rijoi,.  v.  Thomas,  4  Wallace,  G03. 

On  questions  of  boundaries  between  grantees  of  the  United  States*  this 
court  has  no  jurisdiction  Doe  v.  The  CUi/  of  Mobile,  9  Howard,  4')!  • 
Moreland  v.  Pof/e,  20  Howard.  •■>22  ;  and  Laufear  v.  tiunle;/,  4  Wallace, 
205  ;  nor  upon  partition  of  land  acquired  jointly  from  the  government. 
Downes  v.  Scott,  4  Howard,  oOO. 

Also  see.  Citi/  <>f'  I<lew  OHeana  v.  Armas  Sc  Ciiciil/n^'.)  Peters,  224  ;  Reed's 
Lessee  \.  3f<trsh,  13  Peters,  153;  Udell  v.  Davidson,  7  Howard,  769;  Doe 
V.  Eslara,  '■)  Howard,  421  ;  Wahonr  k  v.  Kiieeland,  15  Howard,  348  ;  Shaffer 
V.  Saiidt/.  19  Howard,  16;  Mining  Co.  v.  Boggs,^  Wallace,  304;  li<ctor 
y.  Ashley,  6  'V'allace,  142  ;  Carpenter  v.  IVilliains.  Q  Wallace,  785;  ^tniih 
V.  Adsif,  16  Wallace,  185,  an  I  23  Wallace,  368 ;  and  Mi-Sfnyet  al.  v.  Fried- 
man, 2  Otto,  723 

Also  see  the  following  cases  in  wliicli  jurisdiction  was  held.  Matthews 
V.  Zniip,  4  < 'ranch  ,  382,  and  7  Wlieaton,  161  ;  Mac/cay  v  Di'lon,  4  How- 
ard. 421  ;  L'-ssicur  v  Frice,  12  Howard,  59  ;  Cousin  v  Lubahif,  19  Howard, 
202;  Magwir"  v.  Tyler,  1  Black,  195,  and  8  Wallace,  650;  and  Silver  v. 
Ladd,  6  Wallace,  440. 

A  cause  being  before  the  supreme  court  upon  a  second  writ  of  error 
the  court,  under  the  Judiciary  Act,  may,  at  their  discretion,  remand  the 
cause  a  second  time  or  "  proceed  to  a  final  decision  of  the  same  and 
award  execution  "     Tyler  v.  Mag  wire,  17  Wallace,  2.53. 


Litchfield  v.  The  Register  and  Receiver. 
December  Term,  1869,-9  Wallace,  575. 

1.  The  rule  establislied  in  Gaines  v,  Thompson.  7  Wallace,  347,  that  the 

courts  will  not  interfere  by  mandamus  or  injunction  with  the  exer- 
cise by  the  executive  officers  of  duties  requiring  judgment  or  discre- 
tion, affirmed  and  applied  to  registers  and  receivers  of  laud  offices. 

2.  The  fact  that  a  plaintitl"  asserts  himself  to  be  the  owner  of  the  tract 

of  laud  which  tliese  officers  are  treating  as  public  lands,  does  not 
take  the  case  out  of  that  rule,  wliere  it  is  the  duty  of  these  officers 
to  determine  upon  all  the  facts  before  tliem.  whether  the  land  is 
open  to  pre-emption  or  sale. 

3.  In  sucli  cases,  if  the  court  could  entertain   jurisdiction   against  the 

land  officers,  the  persons  asserting  the  right  of  pre-emption  would 
be  necessary  parties  to  the  suits. 

Appeal  from  the  Circuit  Court  for  the  District  of  Iowa. 

Litchfield  filed  his  bill  in  the  court  below  against  Richards, 
register,  and  Pomeroy,  receiver  of  the  United  States  land  office  at 
Fort  Dodge,  Iowa,  asking  an  injunction  to  restrain  them  from  enter- 


Litchfield  v.  The  Register  and  Receiver.  723 

taining  and  acting  upon  applications  made  to  them  to  prove  pre- 
emptions to  certain  lands  which  lay  within  the  land  district  for 
which  they  were  respectively  register  and  receiver.  The  bill, 
which  was  very  full,  recited  the  various  acts  of  Congress  and  of 
the  State  of  Iowa,  by  which  the  complainant  maintained  that  a 
large  list  of  tracts  of  land,  supposed  to  belong  to  an  original  grant 
to  the  Territory  of  Iowa  for  the  purpose  of  improving  the  naviga- 
tion of  the  Des  Moines  river,  became  his  property.  Tlie  history 
of  that  grant  has  been  recently  the  subject  of  report  in  these  vol- 
umes in  several  cases,  and  it  is  unnecessary  to  repeat  it.  It  is 
sufficient  to  say  that  the  bill  giving  that  version  of  the  matter 
which  was  favorable  to  the  title  of  the  complainant,  averred  that 
he  was  the  legal  owner  of  the  lands  ;  that  they  were  not  public 
lands,  and  were  in  no  manner  subject  to  sale  or  pre-emption  by 
the  government,  or  its  officers.  The  defendant  demurred,  and 
the  bill  was  dismissed  for  want  of  equitable  jurisdiction.  Where- 
upon the  complainant  appealed. 

Mr.  Litchfield,  the  complainant,  insisted  that  the  facts  as  stated 
in  the  bill  must  be  taken  as  confessed  by  the  demurrer,  and  that 
they  showed  that  the  land  officers  were  exceeding  their  authority, 
and  would  give  certificates  of  pre-emption  and  entry,  which  would 
cloud  and  embarrass  his  title,  and  that  they  should,  therefore,  be 
restrained. 

Mr  Kelsey  contra. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

The  principle  has  been  so  repeatedly  decided  in  this  court,  that 
the  judiciary  cannot  interfere  either  by  mandamus  or  injunction 
with  executive  officers  such  as  the  respondents  here,  in  the  dis- 
charge of  their  official  duties,  unless  those  duties  are  of  a  character 
purely  ministerial,  and  involving  no  exercise  of  judgment  or 
discretion,  that  it  would  seem  to  be  useless  to  repeat  it  here.  In 
the  case  of  Gaines  v.  Thompson,  (7  Wallace,  347),  decided  at  the 
last  term  of  this  court,  the  whole  subject  was  full}-  considered,  and 
the  cases  in  this  court  examined.  The  doctrine  just  stated  was 
announced  as  the  result  of  that  examination.  The  case  of  The 
Secretary  v.  McGarrahan,  of  the  present  term,  (9  Wall.,  298), 
reaffirms  the  principle,  which  must  now  be  considered  as  settled. 
Both  these  cases  had  reference  to  efforts  similar  to  the  present,  to 
control  the  officers  of  the  land  department. 

It  is  insisted,  however,  by  the  complainant,  that  the  present  case 


724  Litchfield  v.  The  Register  and  Receiver. 

does  not  come  within  the  rule  so  laid  down,  and  his  ari^ument  is 
plausible.  A  little  consideration,  however,  will  show  that  it  is 
nnsound. 

The  lands  in  controversy  are  situated  within  the  land  district 
over  which  these  officers  have  authority  to  receive  proof  of  pre- 
emption, and  grant  certificate  of  entry.  There  are  within  that 
district,  of  course,  lands  open  to  sale  and  pre-emption.  There 
would  be  no  use  for  the  land  office  if  there  were  not. 

The  very  first  duty  wliich  the  register  is  called  on  to  perform, 
when  an  application  is  made  to  him  to  enter  a  tract  of  land,  is  to 
ascertain  whether  it  is  subject  to  entry.  This  depends  upon  a 
variety  of  circumstances.  Has  there  been  a  proclamation  offering 
it  for  sale?  Has  it  been  reserved  by  any  action  of  Congress,  or 
of  the  proper  department?  Has  it  been  granted  by  any  act  of 
Congress,  or  has  it  been  sold  already?  These  are  all  questions 
for  him  to  decide,  and  they  require  the  exercise  of  judgment  and 
discretion. 

The  bill  shows  on  its  face  that  these  officers,  in  the  exercise  of 
this  duty,  were  considering  whether  the  reservations  of  the  depart- 
ments and  the  acts  of  Congress,  and  the  claim  of  the  plaintiff 
under  them,  took  these  lands  out  of  the  category  of  lands  subject 
to  sale  and  pre-emption,  and  he  asks  the  court  to  interfere  by 
injunction  to  prevent  them  from  determining  that  question,  and 
that  the  court  shall  determine  it  for  them.  He  says  the  court  below 
erred  because  it  did  not  require  them  to  come  in  and  answer  to 
his  claim  of  title,  and  at  their  own  expense  to  put  the  court  in 
possession  of  their  views,  and  defend  their  instructions  from  the 
cominissioner,  and  convert  the  contest  before  the  land  department 
into  one  before  the  court.  This  is  precisely  what  this  court  has 
decided  that  no  court  shall  do.  After  the  land  officers  shall  have 
disposed  of  the  question,  if  any  legal  right  of  plaintiff,  has  been 
invaded,  he  may  seek  redress  in  the  courts.  He  Insists  that  he 
now  has  the  legal  title.  If  the  laud  department  finally  decides  in 
his  favor,  he  is  not  injured.  If  they  give  patents  to  the  appli- 
cants for  pre-emption,  the  courts  can  then  in  the  appropriate 
proceedings  determine  who  has  the  better  title  or  right.  To 
interfere  now.-  is  to  take  from  the  officers  of  the  land  department 
the  functions  which  the  law  confides  to  them  and  exercise  them 
by  the  court. 

Another  objection,  equally  fatal  to  the  bill,  is  the  want  of 
necessary  parties. 


Levi  v.  Thompson.  725 

It  appears  on  its  face,  that  the  register  and  receiver  have  no  real 
interest  in  the  matter,  but  that  persons  not  named  are  asserting 
before  them  the  legal  right  to  pre-empt  these  lands.  These  persons 
are  the  real  parties  whose  interest  are  to  be  affected,  and  whose 
claim  of  right  is  adverse  to  plaintiff.  If  the  court  should  hear  the 
case,  and  enjoin  perpetually  the  register  and  receiver  from  enter- 
taining their  applications,  they  have  no  further  remedy.  That  is 
the  initial  point  of  establishing  their  right,  and  in  this  mode  a 
valuable  and  recognized  right  ma}^  be  wholly  defeated  and  de- 
stroyed, without  the  possibility  of  a  hearing  on  the  part  of  the  ])arty 
interested.  This  is  not  a  case  in  which  the  land  officers  represent 
these  claimants.  They  have  no  such  duty  to  perform.  They 
might  let  the  injunction  be  issued  without  defence,  and  thus  a 
proceeding  almost  exparte  be  made  to  strangle  the  incipient  right 
of  the  actual  settler  on  the  public  lands.  If  it  can  be  done  in  this 
case,  it  can  be  done  in  every  other  in  which  a  plaintiff  is  willing 
to  proceed  against  the  officers,  without  bringing  the  settler  on  the 
land  before  the  court.  Decree  affirmed. 

>^(,XE.— 1.  Die  same  doctrine  held  in  Mcluiire  v.  Wood.  7  r'ranch,  504  ; 
Mr.Cliuuj  V.  StUmuii.  2  Wheaton.  369,  and  6  Wheaton.  .")1)8  ;  Vnited  States 
V.  The  C'mmi.ssiow.r.  n  Wallace,  .")fi3  ;  Walkerw.  .S'mi///,  21  Howard,  o79,  and 
Ca.stro  V.  Emdric.lifi.  2:'.  Howard.  4:iS. 


Alexandei!   Levi  /;.  John  Thompson  et  xVL. 

December  Term,  184.5.—- 4  Howard,  17  ;  1(5  Curtis,  8. 

The  title  acquired  bj'  a  register's  certificate,  upon  which  a  patent  issues, 
is  such  au  equitable  title  as  was  liable  to  be  levied  on  by  the  law  of 
Iowa  1 

The  commissioners  under  the  act  of  tiie  3d  of  March,  1837  (5 
Stats,  at  Large,  178),  amendatory  of  the  act  entitled  -An  act  for 
laying  off  the  towns  of  Fort  Madison,"  &c.,  approved  July  2,  1836 
(5  Stats,  at  Large,  70),  confirmed  unto  Alexander  Levi  and  Jolm 
Thompson,  as  tenants  in  common,  the  right  of  purchase,  by  pre- 
emption, of  lot  No.  68,  in  the  town  of  Dubuque,  being  of  tlie  first 
class,  containing  seventeen  one-hundredths  of  an  acre.  The  lot  was 
entered  in  the  land  office,  and  tlie  receivers  receipt  given  to  Levi 
and  Thompson  for  the  purchase-money  on  the  1st  of  April,  1840. 
It  appears  that  William  Chilson  and  Joel  Campbell  had  instituted 


'726  Levi  v.  Thompson. 

a  suit,  on  the  common  law  side  of  the  District  Court  of  Dubuque 
county,  against  Levi  and  Thompson,  and  that  judgment  was 
rendered  against  them  for  $780.50  and  costs  of  suit  in  August, 
1839.  Execution  was  issued  upon  the  judgment  in  due  form  of 
law ;  it  was  placed  in  the  sheriff's  hands  to  be  executed,  and  he 
levied  upon  the  lot  for  which  Levi  and  Thompson  had  a  pre-emp- 
tion certificate,  and  the  same  was  sold  to  satisfy  the  execution 
before  a  patent  had  been  issued  by  the  United  States  to  Levi  and 
Thompson  for  the  same.  Tliompson,  the  tenant  in  common  with 
Levi,  became  the  purchaser,  paid  the  purchase-money,  and  took 
the  sheriff's  deed  for  the  same.  Thompson,  in  November.  1841, 
sold  the  lot  to  the  other  defendants,  who  had  paid  for  the  same 
before  Levi  sued  out  his  bill.  They  state,  in  their  answer  to 
Levi's  bill,  that  when  they  bought  the  lot  from  Thompson  they 
were  informed  by  him,  and  so  supposed  the  fact  to  be,  that  he  had 
a  full  and  perfect  right  thereto,  free  from  all  incumbrances,  and 
of  all  claim  by  any  other  person  or  persons,  and  that  at  the  time 
of  their  purchase,  and  when  they  made  the  payments  to  Thompson 
for  the  same,  they  were  utterly  ignorant  of  any  title  or  claim  to 
property  in  Levi,  or  that  he  set  up  or  pretended  to  have  any  claim 
or  title  to  the  same  ;  that  the  first  notice  they  had  of  any  such 
claim  by  Levi  was  about  three  weeks  before  the  date  of  their 
answer  to  his  bill,  when  he  sent  them  word  that  he  desired  them 
to  make  a  division  of  the  property  with  him.  They  further  state 
at  the  time  of  their  purchase  there  was  a  small  log-house  upon 
the  lot,  of  little  or  no  value  to  them,  which  they  tore  down  and 
removed  ;  that  they  went  into  quiet  and  peaceable  possession  of 
the  lot  at  the  time  of  their  purchase,  and  have  so  remained  ever 
since  ;  that  they  had  made  lasting  and  valuable  improvements 
upon  the  lot ;  that  for  a  considerable  part  of  the  time  whilst  they 
were  making  these  improvements,  Levi  had  been  in  the  city  of 
Dubuque,  and  they  believe  must  have  discovered  them,  as  4ie 
frequently  passed  and  repassed  the  lot,  and  never  informed  them 
of  his  having  any  claim  to  the  same.  The  cause  was  tried  in  the 
district  court,  upon  the  bill  and  answers  of  the  defendants,  and 
the  court  adjudged  that  the  petition  of  the  complainant  should 
be  dismissed.  An  appeal  was  taken  to  the  Supreme  Court,  and 
that  court  affirmed  the  decree  of  the  court  below,  and  from  that 
court  it  has  been  brought  to  this  court  by  appeal. 

Washington  Hunt  for  the  appellant. 

Davis  and  Crav:ford  for  the  appellees. 


Levi  v.  Thompson.  727 

Waynk,  J.,  delivered  the  opinion  of  the  court. 

The  only  question  raised  by  the  pleadings  in  this  cause,  and  it 
seems  to  us  the  only  one  argued  at  its  hearings  in  the  District 
and  Supreme  Courts  of  Iowa,  was  whether  the  lot,  for  which  Levi 
and  Thompson  had  a  pre-emption  certificate,  which  had  been 
entered  and  paid  for  by  them,  was  or  was  not  liable  to  be  sold 
upon  execution  issued  upon  a  judgment  rendered  against  them 
previous  to  a  patent  having  been  issued  for  the  land  by  the  gov- 
ernment of  the  United  States.  Their  right  to  a  pre-emption 
purchase  of  the  lot  was  acquired  under  the  act  of  the  2d  of  July, 
1836,  c.  262,  entitled  "An  act  for  laying  off  the  towns  of  Fort 
Madison  and  Burlington,  in  the  county  of  Des  Moines,  and  the 
towns  of  Bellevue,  Dubuque,  and  Peru,  in  the  county  of  Dubuque, 
Territory  of  Wisconsin,  and  for  other  purposes."  and  under  the 
act  of  the  3d  of  March,  1837,  c.  36,  amendatory  of  the  preceding 
act  just  recited.  The  right  of  Levi  and  Thompson  to  a  pre-emp- 
tion under  those  acts  is  not  a  controverted  point  in  the  case. 
Taking  it  for  granted,  then,  that  it  had  been  lawfully  acquired, 
that  they  entered  the  land  in  the  proper  office,  and  that  it  was 
paid  for  in  their  names,  this  gave  them  the  right  to  the  register's 
certificate  of  purchase,  to  be  transmitted  to  the  Commissioner  of 
the  General  Land  Office,  as  in  other  cases  of  the  sale  of  public 
lands.  The  fee  continues  in  the  United  States  until  the  issue  of 
the  patent,  but  the  right  to  the  fee  was  in  the  purchasers,  and 
they  were  entitled  to  a  patent  for  the  land,  unless  there  was  some 
legal  objection  by  the  United  States  against  issuing  it,  of  which 
this  court  is  not  advised. 

This  right  to  the  fee  and  a  patent  in  this  case  gave  to  Levi  and 
Thompson  that  -'equitable  right"  to  the  land,  under  the  certificate 
from  the  receiver  of  the  land  office,  which  the  law  of  Iowa  has 
made  subject  to  execution  for  the  satisfaction  of  judgments. 
(Stat.  Law  Ter.  of  Iowa,  197,  January  25,  1839.) 

We  further  remark  that  the  principle  upon  which  the  case  of 
Carroll  v.  Safford,  3  How.,  441,  was  decided,  covers  this  case. 
Nor  do  we  find  anything  in  the  case  of  Bagnell  v.  Broderick,  13 
Pet.,  436.  or  of  Wilcox  v.  Jackson,  13  Pet.,  498.  516,  517,  cited  by 
the  counsel  for  the  plaintiff  in  error,  or  in  any  other  case  decided 
by  this  court,  which  conflicts  with  the  decision  it  here  gives. 

We  direct  the  decree  of  the  court  belmo  to  be  affirmed. 

>j()'j-E._l .  By  a  valid  entry  an  interest  in  the  land  is  acquired  that  may 
be  levied  upon  and  sold,  under  execution.     Falkurr  v.  Leitti,  lo  .\la.,  P  ; 


728  Wilson  v.  J3yers. 

Byersv.  A'cnl,  4.S  ('al.,  -JIO;  .luckson  v.  Spink,  aJ)  I]].,  404.  A  juclgment  then 
becomes  alien  oil  the  Imid  entered.  Rnh.  it.son  v.  li'o^-W,  .">  La.  Ann..  1!)7; 
and  in  equity  this  lien  cannot  be  defeated  by  the  purchaser  a.ssignin,o- the 
certificate  of  entry,  and  havin"-  the  patent  issue  in  the  name  of  such 
assignee.  lliiiiiiiii/(h>ii  v.  (hiditUunI,  ;}3  Miss.,  4.T3 ;  also,  in  law  tlie  pur- 
chaser at  the  .sherill's  .sale  may  maintain  an  action  of  ejectment  .against 
the  patentee.     A'o/ye/.v  v.  Hrmi,  ."»  Gill  (111  ),  ."iT."!. 

ill  ca.se  the  certificate  of  entry  is  assigned  before  judgment,  then  no 
lien  could  attacli,  as  the  assignment  passed  the  title  to  the  land,  and  a 
sale  under  such  judgment  would  pass  no  title,  although  the  assignment 
was  not  recorded.     Maiiin  v.  Nask,  ;J1    Miss.,  324. 

A  certificate  of  entry  may  be  assigned  as  collateral  security,  and  such 
assignment  will  be  an  equitable  lien  on  the  land  described  in  the  certifi- 
cate.     W<dla<XY.   Wilson.  30  Mo.,  33o  ;  Storer  v.  Bounds,  1  Ohio  St.,  107. 

.No  implied  warranty  of  title  to  the  land  attaches  to  the  assignment  of 
a  certificate  of  entry.     Johnson  v.  lloiKjhton,  19  Ind.,  iioO. 

The  assignment  of  the  certificate  of  entry  passes  the  equitable  title  to 
the  land,  and  a  patent  issued  to  the  person  who  made  the  entry,  and  a 
sale  of  the  land  by  him  cannot  defeat  this  equitable  title.  Sillijman  v. 
King,  :W  Iowa,  207  ;  also,  see' Fa/kiie)'  v.  Jones,  VI  Ala.,  165. 

[f  an  assignment  of  a  certificate  of  entry  be  obtained  by  fraud,  a  court 
of  equity  may  order  the  cancellation  of  such  assignment.  Phdliptf  v. 
Moon;  1 1   Mo.,  (iOO. 

If  the  holder  of  a  certificate  of  entry  execute  a  title  bond  for  a  convey- 
ance of  the  land,  and  afterward  assign  the  certificate  of  entry,  the 
assignee  will  tiold  the  legal  title,  in  trust' for  the  holder  of  the  title  bond. 
Ctpps  V.  Irvin,  i  Blackf.  (!nd.),  112. 


Edward  S.  Wilson  v.  Alex.  L.  Byers  et.  al. 

Supreme  Court  of  Illinois,  January  Term,  187;").— 77  Illinois,  7ii. 

Mi^'ake:  <!  n-.-rlmg  ,1  p.i'tinf.  fnr  Ian  /  mhu-rd.  — Where  a  party  entered  a 
quarter  of  land  in  township  4  north  of  a  base  line,  and.  being  unable 
to  complete  the  payment,  attempted  to  relinquish  the  east  half 
thereof,  but,  by  mistake,  the  quarter  was  described  as  in  town.ship 
4  south,  and  a  patent  was  issued  to  his  assignee  for  the  west  half  of 
the  tract  so  entered,  describing  it  as  in  township  4  south,  instead  of 
4  north,  and  pos.session  was  taken,  at  the  time,  of  the  right  tract, 
and  continued  until  it  was  entered  and  purchased  of  the  United 
States  by  the  defendant,  it  was  held,  on  bill  filed  to  correct  the  mis- 
take, etc.,  that  the  complainant  liolding  under  the  original  purchaser 
was  entitled  to  have  the  mistake  corrected,  and  compel  the  defend- 
ant to  convey  the  legal  title  to  them. 

Same:  Mast  be  midual.--\\here  a  mistake  is  alleged  in  the  patent  from 
the  I'nited  States  for  a  tract  of  land,  it  is  not  sufilcient  to  show  a  mis- 


Wilson  v.  JByers.  729^ 

take  ill  tlie  ai^plicatioii  of  tlic  patentee,  but  it  must  be  -liown  tiiat 
tlie  mistake  was  mutual,  and  that  tlie  land  Dfticers.  in  sollinij. 
intended  to  have  sold  the  tract  claimed. 

8.  LarliKu :  Hot  inDJiited  to  one  in  peace  ihle  po.ises.siou.^Lar.ke'i  ceinnot  be 
imputed  to  one  in  the  peaceable  possession  of  land,  for  delay 
in  resorting  to  a  court  of  equity  to  correct  a  mistake  in  the  descrip- 
tion of  the  promises  in  any  of  the  conveyances,  through  which  he 
deduces  title.  His  possession  is  notice  to  the  world  of  his  equitable 
rights,  and  lie  need  not  assert  them  until  he  may  tind  occasion 
to  do  so. 

4.  Triisi :  When  t>arlij  a-qidiinj  Ivinl  title  will  !>'■  <le':lare<l  n  iinsii'>-  fur  Ike 
equitable  owner.— Whervi  a  certain  tract  of  land  is  in  fact  purchased  of 
the  ITnited  States,  but  the  same  is  mlsdescribed  in  the  patent  issued 
therefor,  and  a  party,  having  notice;  by  actual  possession  of  those 
claiming  under  the  purchaser,  acquires  the  legal  title  to  the  land  from 
the  government,  it  will  be  held  in  fraud  of  the  rights  of  the  equita- 
ble owners,  and  he  will  be  regarded  as  holding  the  legal  title  in  trust 
for  tliem. 

Appkal  from  the  Circuit  Court  of  Jasper  County. 
The  Hon.  James  C.  Allen,  Judge,  presidiuo;. 
Messrs.  Wilson  4-  Hiitchmson  for  the  appellant. 
Messrs.  Robinson..  Knapp  S,-  Shnft.  and   Mr.  Finney  D.  Preston 
for  the  appellees. 

Mk.  Justice  Sheldon  delivered  the  opinion  of  the  court. 

The  bill  in  chancery  in  this  case  charged  that,  about  April  20, 
1820,  one  David  Rawlings  applied  at  the  Shawneetown  land  otfice, 
in  this  State,  to  enter  the  whole  of  the  southeast  quarter  of  section 
34,  township  4  north  of  the  base  line,  range  10  east  of  the  third 
principal  meridian,  and  paid  tlie  partial  payment  thereon  then 
permitted  by  law ;  that  afterwards,  being  unable  to  pay  for  tiie 
whole  of  said  tract,  he  relinquished  to  the  United  States  the  east 
half  of  the  quarter-section,  retaining  the  west  half ;  that  he  assigned 
his  certificate  of  entry  to  one  James  Elliott,  who  completed  tlie 
payment  for  said  west  half,  received  a  certificate  of  purchase 
therefor,  and  which  passed  into  a  patent  from  the  United  States 
to  James  Elliott,  as  assignee  of  Uavid  Rawlings,  in  which  patent 
the  land  is  described  as  being  in  township  number  4  south,  instead 
of  north  of  the  base  line  ;  that  Elliott  afterward  sold  and  conveyed 
the  tract  to  one  Thomas  W.  Lilley,  describing  correctly  in  the 
deed  the  land  as  the  west  half  of  tlie  southeast  quarter  of  section 
34,  township  4  north,  range  10  east,  etc.,  that  in  1841,  Lilley 
platted  part  of  this  tract  in  town  lots,  which  are  now  part  of  the 


730  Wilson  ?;.  Byers. 

town  of  Olney,  and  sold  and  conveyed  several  of  the  lots  to  the 
complainants;  that  in  February,  1871.  Edward  S.Wilson,  the 
defendant,  procured  patents  from  the  United  States  to  said  west 
half  of  southeast  quarter  of  section  34,  township  4  north,  range 
10  east,  etc.,  and  claims  to  own  the  same  ;  that  the  patent  of 
Wilson  constitutes  a  cloud  on  complainants'  title,  and  prays  that 
Wilson  be  ordered  to  convey  to  them,  etc. 

The  court  below,  on  hearing;  upon  proofs,  decreed  the  relief 
prayed,  and  defendant  appealed  from  the  decree. 

It  is  conceded  by  appellant's  counsel  that  the  entry  of  and  pay- 
ment for  public  land  give  better  title,  in  equity,  than  a  subsequent 
patent  to  another  person.  The  important  question  in  the  case, 
then,  and  the  only  real  subject  of  dispute,  is  one  of  fact.  AYhat 
tract  of  land  did  David  Rawlings  buy,  or  intend  to  buy,  of  the 
United  States ;  and,  also,  what  tract  did  the  United  States  sell 
to  him? 

The  cause  was  heard  below  upon  an  agreed  statement  of  facts, 
in  addition  to  the  documentary  testimony,  and  the  depositions  of 
Alexander  and  Keefer,  former  registers  of  the  Palestine  and 
Springfield  land  offices. 

It  appears  that  the  original  application  by  David  Rawlings  to 
enter  land  April  11,  1820,  and  the  certificate  of  such  entry  then 
issued  to  him  at  the  Shawneetown  land  office  are  lost :  that 
Michael  Rawlings,  father  of  David  Rawlings,  settled  with  his 
family  on  the  west  half  southeast  quarter-section  34,  township  4 
north,  range  10  east,  third  principal  meridian,  in  the  fall  of  1820  ; 
built  a  house  thereon  and  resided  in  it,  and  inclosed  part  of  the 
tract.  His  son  David  lived  with  him  in  his  family.  They  lived 
there  till  the  spring  of  1823,  when  Michael  Rawlings  sold  said 
tract  to  James  Elliott,  who  moved  into  the  house  and  took  pos- 
session in  the  fall  of  1823,  and  made  additional  improvements 
thereon.  Elliott  lived  there  until  1837,  when  he  sold  and  conveyed 
the  said  tract  to  Thomas  W.  Lilley,  describing  it  correctly  in  his 
deed.  Lilley  took  possession  and  enclosed  the  whole  tract,  and 
lived  on  the  same  until  his  death  in  1869.  He  platted  part  of  it 
as  an  addition  to  Olney,  and  many  of  the  lots  had  been  sold  by 
him,  among  which  are  those  claimed  by  complainants.  Lilley's 
widow  continues  to  occupy  part  of  said  land  as  her  homestead. 
Since  their  purchase,  complainants  have  been  in  actual  possession 
of  their  lots,  and  have  erected  buildings  on  them. 

Clark  D.  Stillwell.  on  September  24,  1854,  obtained  a  certificate 


Wilson  v.  Bybrs.  731 

of  entry,  at  the  Shawneetown  land  office,  for  the  northwest  quarter 
of  southeast  quarter  of  section  34,  township  4  south,  range  10  east, 
third  principal  meridian,  and  went  on  the  same  in  185o,  made 
some  improvements,  and  has  since  sold  and  conveyed  said  tract 
to  .Joseph  P.  Stillwell.  This  certificate  was,  however,  canceled 
June  12,  18;'):),  by  the  Commissioner  of  the  General  Land  Office, 
as  interfering  with  a  previous  sale  of  the  west  half  of  the  quarter 
to  David  Rawlings,  April  11,  1820. 

White  county,  in  wliich  the  west  half  southeast  quarter  34,  4 
south.  10  east,  third  principal  meridian  is  situated,  has  sold  and 
conveyed  to  Joseph  P.  Stillwell  the  southwest  quarter  of  southeast 
quarter  34,  4  south,  10  east,  third  principal  meridian,  it  having 
been  ))reviously  vested  in  the  county  as  swamp  land,  under  the  act 
of  Congress  granting  the  swamp  lands  ;  since  which  sale  by  the 
county,  both  said  forties  in  southeast  quarter  34,  township  4  south, 
have  been  occupied  by  said  Stillwell  and  his  grantees,  who  liave 
improved  the  same. 

The  west  half  southeast  quarter  34.  4  south.  10  east,  third 
principal  meridian,  was  wild  and  unoccupied  land  prior  to  Still- 
well's  entr3-  in  18o5. 

Neither  Michael  Rawlings,  David  Rawlings.  nor  James  Elliott, 
ever  lived  on  said  last  tract  of  land,  or  claimed  title  to  it,  or  lived 
in  White  county.  Edward  S.  Wilson,  the  defendant,  is  a  lawyer 
of  several  years'  practice,  and  has  been  engaged  in  abstracting 
titles  to  land  in  Olney,  and  has  lived  there  several  j^ears. 

From  the  above-recited  facts,  there  can  be  no  doubt  what  land 
Rawlings  intended  to  purchase,  and  supposed  he  had  purchased, 
and  what  land  Elliott,  as  his  assignee,  intended  to  complete  the 
purchase  of,  and  supposed  he  had  done  so  ;  that  it  was  the  eight}^- 
acre  tract  in  4  north ;  and  that  the  defendant  was  chargeable  witli 
constructive  notice  of  whatever  equitable  rights  they  and  tlie  com- 
plainants had  thereto. 

But  this,  of  itself,  is  not  enough.  The  mistake  to  be  relieved 
against  must  have  been  mutual,  and  tlie  land  officers  maiciug  sale 
of  the  laud  as  well  must  have  intended  to  sell  this  same  tract. 
Rawlings  might  have  made  a  mistake  in  his  original  application 
to  enter  the  land,  and  have  wrongly  described  it  as  in  4  south  ; 
but  this  original  application  is  lost,  as  well  as  the  certificate  of 
the  entry  issued  to  him,  and  we  have  to  look  to  the  official  records 
of  the  land  offices  for  evidence  upon  the  jjoint. 

We  may  first  say  that,  in   1820.  when  this  entry  was  made,  tlie 


732  Wilson  v.  Byers. 

United  States  was  sellinsi  its  lands  at  $2  per  acre,  one-fourth  of 
the  purchase  money  being  required  to  be  paid  in  cash  at  the  time 
of  the  entry,  and  the  balance  in  annual  payments. 

We  have  then  in  evidence  an  extract  from  ledger  D,  of  the 
register's  land  office,  Shawneetown  land  office,  where  we  find  that 
on  April  11,  1820,  is  recorded  the  fact  that  on  that  day  "David 
Rawlings,  of  Pklwards  county,  Illinois,  bought  the  S.  E.  |  of  Sec. 
34,  in  township  No.  4  N.,  R.  10  E.,  for  $320  : "  that  on  the  same 
day  he  is  credited,  "by  cash  $80.'"  In  this  entry  the  letter  "N," 
after  the  township,  is  in  red  ink,  and  appears  above  the  line  of 
the  rest  of  the  entry.  This  is  a  suspicious  circumstance,  and 
renders  it  unsatisfactory  what  the  original  entry  was. 

We  have  next  the  following  : 

"  Receiver's  Office,  at  Shawneetown. 

"Illinois,  lUh  April,  1820. 
'■'■Sundries.  Dr. — To  sales  of  public  lands: 

"David  Rawlings,  for  purchase  money  of  S.  E.  |  of  Sec.  34.  T. 
4  N.,  R.  10  E.,  160  acres,  purchase  11th  April.  1820.    .     .    $320." 

"  Cash  Account,  Dr. — To  Sundries: 

"To  David  Rawlings,  for  first  installment  of  purcliase  money 
of  S.  E.  i,  Sec.  34,  T.  4  N.,  R.  10  E.,  purchased  11th  April.  1820, 
per  receipt  7048 $80." 

This  is  a  record  from  journal  F,  of  tlie  receiver's  office,  of  the 
Shawneetown  land  office,  dated  11th  April,  1820. 

We  have  then  the  following  : 

"1820,  nth  April— 7048— David  Rawlings— 1—80— S.  E.  34— 
4  N— 10  E— 160."  ■ 

This  extract  is  from  a  book  in  the  register's  office,  of  said  land 
office,  marked  "  Registry  of  Receipts,"  and  is  the  record  kept  by 
the  register  of  the  receipts  given  by  the  receiver,  and  shows  that 
on  the  11th  of  April,  1820,  David  Rawlings  had  presented  to  him 
for  registry  the  receipt  of  the  receiver  for  first  payment  of  $80 
for  the  southeast  quarter  of  34,  township  4  north,  range  10  east, 
160  acres,  .and  that  said  receipt  was  number  7048. 

These  last  two  entries  in  the  receiver's  and  register's  books  are 
unexceptional  in  appearance,  there  being  no  suspicious  circum- 
stance of  alteration  whatever  connected  with  them. 

The  above  exemplifications  fi-oni  the  records  of  the  Shawnee- 


Wilson  r.  Byers.  733 

town  Innd  office  constitute  all  the  entries  on  any  of  said  books 
relatinsx  to  tliis  tract  of  land  from  April  11.  1820.  until  June  '25. 
182it. 

On  the  daj-  last  named,  James  Elliott,  assignee  of  David  Raw- 
lings,  completed  the  entry  of  Rawlings,  in  accordance  with  an  act 
of  C!ongress  then  in  force,  by  relinquishing  to  the  United  States 
the  east  half  of  the  quarter-section,  describing  it,  as  the  record 
shows,  as  in  4  south,  and  paying  the  balance  due  for  the  west 
half,  and  receiving  therefor  Shawneetown  final  certificate  number 
lloO.  which  also  describes  the  tract  as  in  4  sontli.  It.  however, 
also  describes  the  tract  as  purchased  by  David  Rawlings,  April 
11.  1820,  and  that  Elliott,  his  assignee,  has  completed  payment 
of  it.  The  entries  of  the  transaction  in  the  journals  of  both  the 
receiver's  and  register's  offices  of  the  Shawneetown  land  office, 
under  date  of  June  25,  182!».  describe  the  tract  as  in  4  south, 
and  the  patent  to  Elliott  describes  it  as  in  4  sontli.  There  is  no 
doubt,  from  the  evidence,  that,  by  the  records  of  the  General  Land 
Office  at  Washington,  the  west  half  southeast  quarter  34,  town- 
ship 4  north,  range  10  east,  third  principal  meridian,  at  this  last 
date  and  afterward,  appeared  to  be  vacant.  The  commissioner 
of  that  office  informed  the  register  and  receiver  of  the  local  office, 
by  letter  of  February  11,  1870.  that  it  so  appeared,  and  directed 
them  to  hold  the  same  subject  to  entry,  etc. ;  but  there  is  no 
exemplification  in  evidence  of  any  record  from  the  General  Land 
Office,  except  that  of  Elliott's  relinquishment  and  his  final  certifi- 
cate, number  1150.  There  is  no  evidence  as  to  Rawlings'  original 
certificate. 

After  the  entry  by  Rawlings,  April  11,  1820,  the  Palestine  land 
district  was  created  from  territofy^  of  the  Shawneetown  land  dis- 
trict, and  the  tract  in  4  north  of  the  base  line  fell  in  the  former  dis- 
trict, the  south  line  of  the  Palestine  district  being  the  base  line, 
and  that  line  being  the  north  boundary  of  the  Sliawneetown  land 
district. 

The  Palestine  land  office  was  opened  in  the  fall  of  1820.  As 
the  entry  by  Rawlings  was  at  Shawneetown  land  office,  and  at 
the  time  this  tract  in  4  north  was  in  that  land  district,  Elliott  had 
to  complete  the  purchase  at  the  Shawneetown  office. 

The  plat  books  and  the  tract  books  of  both  these  offices  furnish 
further  evidence  that  it  was  the  tract  in  4  north  which  Rawlings 
purchased,  and  P^lliott,  his  assignee,  completed  payment  for. 

On  the  plat  book  of  the  Shawneetown  land  office  there  is  no 


734  Wilson  v.  Byers. 

entry  of  the  purchase  by  Rawlings  of  the  southeast  quarter  of  this 
section  in  township  4  south,  but,  on  the  contrar}^  the  first  entry 
thereon  was  the  noting  on  the  northwest  quarter  of  southeast 
quarter  of  34,  4  south,  of  the  entry  of  that  by  Clark  D.  Stillwell, 
September  2,  1854,  and  indicated  on  the  plat  by  the  figures 
21,236,"  that  being  the  number  of  .Stillwell's  certificate.  No  other 
entry  appears  on  said  plat  book  until,  in  pursuance  of  an  order 
from  the  Commissioner  of  the  General  Land  Office,  the  register 
of  the  Shawneetown  land  office  was  directed  to  make  entry  of 
approved  list  number  1  of  Swamp  lands,  opposite  each  of  said 
tracts,  on  his  books,  of  the  words  "  swamp  land  act,  Septem- 
ber 28,  1850;  approved  May  1!J,  1855,  in  list  1."  In  this  list  of 
swamp  lands  are  south  half  southeast  quarter  34,  4  south,  10  east, 
third  principal  meridian,  and  northeast  quarter  southeast  quarter 
34,  4  south,  10  east,  third  principal  meridian.  This  the  register 
complied  with  by  noting  on  said  plat  book,  on  said  swamp  land 
tracts,  the  words,  ••  State,  act  28th  September,  1850,"  and  also  by 
entering  on  the  tract  book  the  above  words  ordered  to  be  inserted 
by  said  commissioner ;  and  thus,  with  the  Stillwell  entry,  com- 
pleting the  disposition  of  the  whole  quarter  section  south  of  the 
base  line.  Upon  the  tract  book  of  the  Palestine  land  office  there 
was  the  following  original  entry  upon  the  plat  of  this  tract :  "  W. 
H.  S.,  E.  34,  4,  10,  David  Rawljngs,  S.  T.  Cert.  1150;"  the 
above  abbreviations  standing  for  west  half  southeast  quarter- 
section  34,  township  4,  range  10,  the  letters  "S.  T.  Cert."  mean- 
ing Shawneetown  certificate,  and  the  figures  1150  the  number  of 
the  final  cei'tificate  under  which  the  entry  was  concluded. 

On  the  plat  of  ihe  tract  upon  the  plat  book  of  the  Palestine 
land  office  was  the  following  original  entry  :  "S.  T.  1150." 

If  the  tract  which  Rawlings  applied  to  enter,  and  Elliott  con- 
cluded the  entry  of,  were  in  township  4,  south  of  the  base  line, 
these  entries  should  not  appear  on  the  books  of  the  Palestine  land 
office,  as  it  only  had  to  do  with  lands  lying  north  of  the  base  line. 

So,  too,  had  the  tract  been  in  4  south,  the  fact  of  the  entry 
should  have  been  noted  on  the  plat  book  of  the  Shawneetown 
land  office,  and  said  book  should  not  have  remained  wholly  blank 
respecting  this  quarter-section,  until  in  1854,  when  the  entry  of 
the  northwest  quarter  of  it  by  Clark  D.  Stillwell  is  noted  by  the 
figures  21,236,  and  subsequently  the  grant  of  the  remainder  as 
swamp  land  to  the  State,  is  noted  upon  it. 

These  original  entries  upon  the  Palestine  office  plat   and  tract 


Wilson  v.  Byers.  735 

books  were  subsequently,  in  1870,  at  the  time  of  Wilson's  entry, 
erased  by  the  deputy  register  of  the  land  office  at  Sprin<j:fie]d — to 
which  latter  office,  in  1855,  or  1856,  all  books  and  papers  of  alt 
the  other  land  offices  in  the  State  were  sent,  and  they  closed,  in 
correction  of  a  supposed  mistake  ;  and  an  entrj'^  of  Wilson's  pur- 
chase was  made  instead. 

It  is  needless  to  enlarsfe  upon  the  evidence.  It  is  palpable, 
from  the  proofs  furnished  by  the  books  of  the  Shawneetown  and 
Palestine  land  offices,  that  the  tract  which  the  land  officers 
intended  to  and  did  sell  to  Rawlings.  April  11,  1820,  and  which 
they  received  iinal  payment  for  from  Elliott,  Rawlings'  assignee, 
June  25,  1829,  was  the  west  half  of  southeast  quarter-section  34, 
township  4  north  of  the  base  line,  of  range  10  east  of  the  third 
principal  meridian,  and  that  in  Elliott's  relinquishment,  Shawnee- 
town final  certificate  number  1150,  and  patent,  there  was  a  mis- 
take made  in  the  description  of  the  tract,  describing  it  as  in  4 
south  instead  of  4  north. 

It  is  insisted  that  Elliott  has  not  paid  for  the  tract  in  full, 
because  it  was  in  part  paid  for  by  Elliott's  relinquishment  of  the 
east  half  of  southeast  quarter  34,  township  4  south,  range  10 
east,  etc.,  and  Elliott  had  no  title  to  that ;  but  it  was  the  east 
half  southeast  quarter  34,  township  4  north,  etc.,  which  was 
actually  relinquished  by  Elliott,  there  being  a  mistake  in  describ- 
ing it  as  in  4  sotith. 

It  is  insisted,  too,  that  there  has  been  such  laches  as  should  bar 
the  claim  for  relief. 

Laches  cannot  be  imputed  to  one  in  the  peaceable  possession  of 
land,  for  delay  in  resorting  to  a  court  of  equity  to  correct  a  mis- 
take in  the  description  of  the  premises  in  one  of  the  conveyances 
through  which  the  title  must  be  deduced.  {Mills  v.  Lockivood,  42 
111.,  112.)  The  possession  is  notice  to  all  of  the  possessor's 
equitable  rights,  and  he  need  to  assert  them  only  when  he  may 
find  occasion  to  do  so. 

The  tract  was  purchased  by  Wilson,  with  "Poterfield"  scrip, 
which  was  worth  $5  per  acre,  because  applicable  to  unofl'ered 
lands  :  and  it  is  insisted  that  it  was  erroneous  to  compel  AVilson 
to  convey  to  complainants  the  rights  held  by  him  under  this 
scrip  ;  that  it  was  an  appropriation  of  this  scrip  to  complainants* 
use,  without  consideration  ;  but  Wilson  purchased  the  land  with 
notice  and  in  consequent  fraud  of  the  rights  of  the  complainants  or 
their  grantor,  and  held  the  title  which  he  acquired  but  as  their 
trustee. 


736  Blanc  v.  Lafayette. 

Whatever  tlie  sum  he  might  have  paid  for  the  land,  it  would  in 
nowise  affect  complainants'  right  to  a  conveyance  of  the  legal 
title. 

The  decree  will  be  affirmed. 

Dfcree  affirmed. 

NoTK.—  lilt"  fact  that  the  applicatiuu  number  was  written  on  the  plat 
in  the  local  land  office  on  the  quarter-section  claimed  to  have  been 
entered,  or  intended  to  have  been  entered,  and  the  payment  of  taxes 
for  several  jea.T$  on  such  tract,  by  the  purchaser,  who  afterwards  sold 
the  laud,  is  not  sufficient  evidence  of  a  mistake  in  the  entry  as  to  offset 
the  fact  that  the  written  application  to  enter,  the  certificate  and  receipt, 
as  well  as  the  tract  book,  all  show  the  entry  of  another  tract,  lown  K. 
R.  and  Land  C'ompan;/\.  Adkiii.s,  'd^  Iowa,  ."i-")]  ;  also,  see  Sensewkrftr  v. 
Smith,  Gfi  Mo..  SO. 


EvAKisTK  Blanc,  plaintiff  in  error,  r.  Gkorge  W.  Lafayette 
and  John  Hag  an. 

December  I'erm,   1S5().  — 11  Howard,  104;  18  Curtis.  565. 

The  act  of  May  11,  1820  (.{  Stats,  at  Large,  573,  §  1 ),  did  not  confirm  a 
claim  to  land  in  Louisiana,  which  was  inserted  in  the  report  of  the 
register  and  receiver,  and  therein  classed  among  claims  which  had 
already  been  confirmed,  though,  in  point  of  fact,  this  claim  ha!  not 
then  been  confirmed. 

ERROR  to  the  Supreme  Court  of  Jvouisiana.     The  material  facts 
appear  in  the  opinion  of  the  court. 
Bullard  for  the  plaintiff. 
Jannin,  contra... 

Wayne,  J.,  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error  having  claimed  the  land  in  dispute  under 
an  act  of  Congress,  and  the  construction  of  that  act  by  the 
Supreme  Court  of  Louisiana  having  been  against  the  claim,  the 
case  is  brought  here  under  the  twentj'-fifth  section  of  the  Judiciary 
Act  of  1789  (1  Stats,  at  Large,  85),  to  have  the  opinion  given  in 
that  court  reviewed  by  this  tribunal. 

The  question  presented  is,  whether  or  not  the  claim  of  Louis 
Liotaud,  for  a  tract  of  land  situated  in  the  eastern  district  of 
Louisiana,  was  confirmed  by  the  act  of  Congress  of  the  11th  of 
May,  1820  (3  Stats,  at  Large.  o73).  against  any  claim  to  the  land 


Blanc  v.  Lafayette.  737 

by  the  United  States,  so  that  an  entiy  could  not  be  made  upon 
it  in  favor  of  Major  General  Lafayette. 

The  plaintitf  in  error  claims  under  Liotaud.  That  claim  will 
be  found  in  3  American  State  Papers,  Public  Lands.  224. 

It  is.  "that  Louis  Liotaud  claims  a  tract  of  land,  situated  in 
the  county  of  Orleans,  on  the  left  bank  of  the  canal  Carondelet, 
leading  to  the  bayou  St.  John,  containing  six  arpens  in  front,  and 
forty  in  dei)th.  and  bounded  on  one  side  hy  lauds  granted  by  the 
Spanish  government  to  Carlos  Gnardiola.  aud  on  the  other  side 
by  vacant  lands.  This  tract  of  land  is  claimed  by  virtue  of 
an  order  of  surve3'  dated  in  the  year  1802."  This  memoran- 
dum is  found  in  the  report  of  the  commissioner  for  ascertain- 
ing and  adjusting  claims  to  land  in  the  eastern  district  of  the 
State  of  Louisiana.  It  was  transmitted  to  Congress  on  the  16th 
of  January,  181J,  by  Josiah  Meigs,  the  General  Land  Commis- 
sioner.    (3  American  State  Papers,  Public  Lands,  222.) 

The  claims  were  divided  into  three  general  classes  : 

1.  Such  as  stand  confirmed  by  law. 

2.  Those  which  the  register  and  receiver  thought  ought  to  be 
confirmed. 

3.  Such  claims  as,  in  their  opinion,  could  not  be  confirmed 
under  existing  laws. 

The  first  class  comprehended  three  species  of  claims  :  1.  Such 
as  were  founded  on  complete  titles,  granted  by  the  French  or 
Spanish  governments.  2.  Claims  resting  upon  incomplete  French 
or  Spanish  grants  or  concessions,  warrants,  or  orders  of  survey, 
granted  prior  to  the  20th  of  December.  1803.  3.  Claims  rejected 
by  a  former  board  of  commissioners,  merely  because  the  lands 
claimed  were  not  inhabited  on  the  20th  of  December,  1803. 

Liotaud' s  claim  is  put  by  the  register  and  receiver  in  the  sec- 
ond species.     (3  American  State  Papers,  Public  Lands,  224.) 

This  report  was  acted  upon  by  Congress.  It  declared  that 
•'  the  claims  for  lands  within  the  eastern  district  of  the  State  of 
Louisiana,  described  by  the  register  and  receiver  of  the  said  dis- 
trict, in  their  report  to  the  Commissioner  of  tlie  General  Land 
Office,  bearing  date  the  20th  of  November,  1816,  and  recom- 
mended in  the  said  report  for  confirmation,  be  and  the  same  are 
hereby  confirmed,  against  any  claim  on  the  part  of  the  United 
States."     (Act  of  May  11.  1820,  c.  87,  §  1,  3  Stats,  at  Large,  573.) 

The  register  and  receiver  had  said  in  their  report  that  all  the 
claims  included  under  the  second  species  of  tlie  first  class  were 

47 


738  Blanc  v.  Lafayette. 

already  confirmed  by  the  act  of  Congress  of  the  12th  of  April, 
1814.  (3  Stats,  at  Large,  121.)  In  this  they  were  certainly  mis- 
taken, as  they  were  also  in  placing  Liotaud's  claim  in  what  was 
termed,  in  their  report,  the  second  species  of  the  first  class  of  claims. 

The  I'ecord  does  not  contain  a  copy  of  the  order  of  survey  in 
favor  of  Liotaud,  mentioned  by  the  register  and  receiver,  dated, 
as  they  say,  in  the  year  1802.  Nor  is  there  in  it  either  of  those 
documentary  papers,  uniforml}'  given  by  the  intendants  general 
of  Spain,  when  grants  of  land  were  made.  We  have  not  before 
us  either  a  grant  or  order  of  survey  in  favor  of  Liotaud.  Nothing 
to  make  the  claim  an  inchoate  right  upon  which  a  title  could  be 
enlarged  in  favor  of  Liotaud.  Indeed,  we  do  not  know  anything 
from  the  record  about  it,  and  all  that  we  do  know  of  the  claim  is 
the  memorandum  of  the  register  and  receiver  already  recited.  That 
discloses  that  the  order  of  survey  mentioned  had  jbeen  given  after 
the  cession  of  Louisiana  by  His  Majesty  to  the  republic  of  France. 

Register  Harper  and  Receiver  Lawrence  say,  in  their  report, 
that  Liotaud's  claim  is  founded  on  an  order  of  survey  dated  in 
the  year  1802.  Apart  from  the  consideration  that  the  order  for  a 
survey  is  dated  after  the  time  when  Spain  had  parted  with  her 
political  sovereignty  to  grant  land  in  Louisiana,  there  is  no  proof 
of  anything  having  been  subseqnentlj^  done  by  Liotaud,  or  by  any 
official  of  Spain,  to  give  to  Liotaud  even  an  inchoate  equity  to 
the  land.  The  claim,  then,  could  not  be  rightfully,  nor  was  it 
understandingly,  put  by  the  register  and  receiver  under  the  sec- 
ond species  of  the  first  class  of  claims  of  incomplete  French  or 
Spanish  grants  or  concessions,  warrants,  or  orders  of  survey, 
granted  prior  to  the  20th  of  December,  1803. 

Liotaud's  claim  having  been  mistakenly  put  where  we  find  it, 
it  is  neitlier  within  the  letter  nor  the  intention  of  the  act  of  the 
11th  of  May,  1820,  confirming  titles  to  land  described  by  the 
register  and  receiver.  Congress  meant  to  confirm  claims  to  land 
under-  some  documentary  right  from  France  or  Spain,  and  not 
claims  by  persons  without  any  such  proof.  Liotaud's  claim,  then, 
under  which  the  plaintiff  in  error  asserts  his  right,  does  not  inter- 
fere with  the  patent  for  the  same  land  issued  by  the  United  States 
in  favor  of  Major  General  Lafayette.  It  is  admitted  in  the  case 
that  the  defendants  in  error  have  acquired  the  rights  of  General 
Lafayette  to  the  lands  in  dispute.  All  of  us  think  that  there  was 
no  error  in  the  judgment  of  the  Supreme  Court  of  Louisiana,  and 
its  judgment  is  Affirmed. 


David  v.  Eickabaugh.  739 

David  v.  Rickabaugh  et  al. 
Supreme  Court  of  Iowa. — December  Term,  1871. — .'{2  Iowa,  ■)4(». 

Reyistni  Laws  :  Public.  Lands. — It  seems  that  the  registration  laws  of  the 
State  do  not  apply  to  the  disposition  of  lands  belonging  to  the  United 
States,  and  that  the  riglits  of  parties  will  be  governed  by  the  regula- 
tions established  by  Congress  until  tlie  title  has  finally  passed  from 
the  government. 

Airpeal  from  Mills  District  Court. 

Friday,  December  8. 

The  petition  states  that  in  1854  the  plaintiff  and  the  banking 
firm  of  Green,  Thomas  &  Co..  of  Burlington,  Iowa,  jointly  em- 
ployed W.  L.  Hamilton  to  select  and  enter,  for  them  and  on  their 
account,  western  lands  of  the  United  States,  furnishing  him  with 
the  necessary  funds  and  land  warrants  ;  that  on  the  20th  day  of 
October,  1854,  said  Hamilton,  with  the  funds  thus  furnished  to 
him,  entered  at  the  Council  Bluff's  land  office  three  of  the  forty- 
acre  tracts  of  the  land  in  controversy  in  his  own  name,  and  some 
time  thereafter  entered  the  other  forty  in  the  same  manner,  pay- 
ing for  the  same  with  the  funds  thus  furnished ;  that  the  certifi- 
cates of  such  entries  were  assigned  by  Hamilton  before  patents 
were  issued  thereon  to  Edward  H.  Thomas,  one  of  the  partners 
in  the  firm  of  Green,  Thomas  &  Co.,  which  assignments  were  duly 
acknowledged  before  the  register  of  the  land  office  :  that  on  August 
23,  1858,  upon  a  settlement  and  division  between  the  plaintiff  and 
Green,  Thomas  &  Co.,  said  E.  H.  Thomas  conve3^ed  to  the  plaintiff, 
among  other  lands,  these  four  forty-acre  tracts  by  quit-claim  deed, 
which  was  duly  acknowledged  and  recorded  ;  that  the  plaintiff 
has  ever  since  paid  the  taxes  and  exercised  complete  ownership 
over  the  same  ;  that  by  some  accident  the  patents  for  three  of  the 
forties  were  not  issued  in  the  name  of  Thomas  as  they  should 
have  been,  but  in  the  name  of  said  Hamilton,  that  for  the  other 
forty  being  correctly  issued  in  the  name  of  E.  H.  Thomas,  assignee. 

The  petition  further  states  that  in  September,  1867,  Hamilton 
and  Rickabaugh,  conspiring  together  to  defraud  the  plaintiff,  the 
said  Hamilton,  pretending  to  be  the  owner  of  said  lands,  conveyed 
the  same  by  deed  of  general  warranty  to  Rickabaugh,  and  that 
the  latter  had  actual  knowledge  of  plaintiff's  ownership. 

Issue  being  joined,  the  cause  was  referred  upon  the  pleadings, 
exhibits  and  depositions,  and  the  report  of  the  referee  is  to  the 


740  David  v.  Rickabaugh. 

etfect  that  all  the  averments  of  the  petition  are  true,  except  that 
Kickabaugh  had  not  snflicient  actual  notice  of  plaintiff's  title  to 
1)6  put  upon  inquiry. 

His  conclusions  of  law  are  : 

1.  That  plaifttitf  is  entitled  to  a  decree  quieting  the  title  in  hini 
to  the  forty,  the  patent  for  which  was  issued  in  the  name  of  E.  H. 
Thomas. 

2.  To  a  judgment  for  the  amount  of  the  unpaid  purchase-money 
due  from  Rickabaugh  on  his  purchase  from  Hamilton. 

3.  That  Rickabaugh  is  entitled  to  a  decree  for  the  other  three 
foi'ties,  patented  in  the  name  of  Hamilton. 

4.  That  the  costs  should  be  apportioned  among  the  parties. 
Exceptions  were  filed  by  both  parties,  which  were  overruled  by 

the  court,  and  a  decree  entered  in  accordance  with  the  referee's 
report.     Plaintitf  appeals. 

Watkins  c^  Williancs  and  Halls  iS,-  Baldwin  for  the  appellant. 

D.  H.  Solomon  for  the  appellees. 

MiLLEK,  J. : 

I.  In  addition  to  the  facts  found  by  the  referee  the  evidence 
shows  that  the  patents  were  never  delivered  to  Hamilton,  but 
remained  in  the  possession  of  the  United  States  until  they  were 
delivered  to  the  plaintiff,  in  186.5,  upon  the  surrender  by  him  of 
the  certificates  of  entry,  and  have  remained  in  his  possession  ever 
since. 

As  to  the  correctness  of  the  first  part  of  the  decree,  quieting 
the  title  in  plaintiff  to  the  forty-acre  tract,  patented  in  the  name 
of  E.  H.  Thomas,  and  conveyed  by  him  to  the  plaintift',  which 
conveyance  was  duly  recorded  prior  to  Rickabaugh' s  purchase 
from  Hamilton,  there  can  be  no  question,  nor  is  any  question 
made  thereon,  as  the  defendants  do  not  appeal  therefrom. 

II.  The  appellee  bases  his  right  and  title  upon  the  following 
facts:  .1.  By  the  copies  of  original  entries  filed  in  the  office  of 
the  recorder  of  deeds  it  appears  that  W.  L.  Hamilton,  his  grantor, 
was  the  original  purchaser  from  the  United  States  of  the  land  in 
controversy.  2.  That  there  was  no  conveyance  of  the  land  from 
Hamilton  of  record.  3.  That  appellee  had  no  actual  notice  of 
plaintiff's  title  or  claims  to  the  land. 

The  rights  of  the  parties  must  be  determined  in  the  main  b}^  the 
laws  of  the  United  States.  While  the  State  has  an  undoubted  right 
to  legislate  as  she  may  please  in  regard  to  the  remedies  to  be  prose- 


David  v.  Rickabaugit.  741 

cuted  in  her  courts,  and  to  regulate  the  disposition  of  property  of 
her  citizens  by  descent,  devise  or  alienation,  3'^et  in  respect  to  the 
public  domain  of  the  United  States,  of  which  the  land  in  dispute 
was  a  part,  Congress  is  invested  by  the  federal  constitution  with 
the  power  of  disposing  of  and  making  all  needful  rules  and  regula- 
tions respecting  it.  {Wilcox'y.  Jackson,  13  Pet.,  498;  Irvine  v. 
Marshall,  20  How.,  ,553.)  So  that,  in  respect  to  the  disi)osition 
of  the  public  lands,  we  must  be  governed  by  the  regulations 
established  hy  Congress  touching  the  same,  until  the  title  has 
finally  passed  from  the  government,  and  until  conveyed  by  its 
grantee. 

We  find  that,  under  these  regulations,  "when  an  individual  applies 
to  purchase  a  tract  of  land,  he  is  required-to  file  an  application  in 
writing  therefor  :  on  such  application  the  register  (of  the  land  otfice) 
indorses  his  certificate,  showing  that  the  land  is  vacant  and  subject- 
to  entry,  which  certificate  the  applicant  carries  to  the  receiver, 
and  is  evidence  on  which  the  receiver,  permits  payment  to  be 
made,  and  issues  his  receipt  therefor.  The  duplicate  of  this  is 
handed  to  the  purshaser,  as  evidence  of  payment,  and  which 
should  be  surrendered  when  a  patent,  forwarded  from  the  General 
Land  Office,  is  delivered  to  him.  The  other  receipt  is  handed  to  the 
register,  who  must  immediately  indicate  the  sale  on  his  township 
plat,  and  enter  the  same  on  his  tract  book,  and  is  transmitted  to  the 
General  Land  Office,  with  the  monthly  abstract  of  sales  and  cer- 
tificate of  purchases."  (See  circular  of  instructions  by  General 
Land  Office,  issued  in  1831.) 

The  entr}'  of  lands  with  military  land  warrants  is  required  to 
be  made  by  application  to  the  register  alone,  who  issues  certifi- 
cates of  purchase  made  according  to  forms  furnished  by  the 
General  Land  Office,  one  of  which  is  delivered  to  the  purchaser, 
and  another  is  retained  to  be  sent  to  the  commissioner.  (See 
Bell  v.  Hearne,  19  How.,  260.) 

By  act  of  Congi'ess  of  March  22,  1852,  the  certificates  of  loca- 
tions of  military  land  warrants  were  made  assignable,  subject  to 
regulations  and  forms  prescribed  by  the  Commission  of  the  Gen- 
eral Land  Office,  and  when  assigned  the  patent  issued  to  the 
assignee. 

In  this  case  the  land  was  entered  with  military  land  warrants 
by  Hamilton,  who  was  a  mere  agent  for  that  purpose.  He  made 
the  entries,  however,  in  his  own  name  ;  subsequently  he  assigned 
the  certificates  to  Thomas.     Before  doing  so  he  held  the  mere 


742  David  v.  Rickabaugh. 

naked  title  (such  as  the  certificates  could  give)  in  trust  for  his 
principals.  After  assigning  the  certificates  he  had  no  title  what- 
ever in  the  land.  The  assignee  became  entitled  to  patents  for  the 
land  in  his  own  name,  and  that  they  were  not  so  issued,  was  the 
result  of  mistake  or  omission. 

AVhen  Thomas  became  the  owner.of  the  land  by  assignment  of 
the  certificates,  there  was  no  act  of  Congress  or  even  of  this  State 
which  required  him  to  record  the  evidence  of  his  title,  nor  has 
there  been  at  any  time  since  any  law  to  that  effect. 

Thomas,  therefore,  could,  at  any  time  after  thus  obtaining  all  the 
title  vested  by  the  certificates,  even  before  the  issuance  of  patents, 
have  conveyed  the  land  by  deed,  as  he  did  to  David.  {Cavender  v. 
Smith,  5  Iowa,  189  ;  Arnold  v.  Grimes,  2  Id.,  1  :  see,  also,  2 
Washb.  on  Real  Property,  544,  545,  and  cases  cited  in  notes 

1  and  2.) 

The  deed  from  Thomas  to  the  plaintiff  vested  in  the  latter  the 
title,  to  the  same  extent  that  it  could  have  been  held  under  the 
certificates  of  entry  by  an  original  enterer.  Up  to  the  time  of  the 
conveyance  by  Thomas  to  David  no  question  of  notice  under  the 
recording  laws  of  the  State  was  involved.     (See  Arnold  v.  Grimes, 

2  Iowa,  19;    Heirs   of  Klein  \.  Argeubright.  26  Id.,  497,  which 
support  the  principle  here  enunciated.) 

The  deed  from  Thomas  to  the  plaintiff  was  duly  recorded  prior 
to  Rickabaugh" s  purchase  from  Hamilton.     The  plaintiff  complied 
with  the  recording  laws  at  once  when  those  laws  became  appli- 
cable and  affected  his  rights.     No  record  of  any  transfer  of  the 
ownership  of  the  land,  prior  to  the  execution  and  delivery  of  the 
deed  to  plaintiff,  was  necessary  to  protect  his  rights.     No  law 
required  him  to  record  tlie  certificates  of  entry  and  Hamilton's 
assignments  thereof.     The  recording  of  his  deed  from  Thomas 
was  constructive  notice  to  Rickabaugh  that  the  plaintiff  claimed 
the  land  under  the  deed.     In  addition  to  this,  the  evidence  shows 
very  satisfactorily  that  the  land  was  commonly  reputed  in  the 
neighb&rhood  to  be  that  of  plaintiff;  that  Rickabaugh  knew  this  ; 
that  he  knew  that  the  taxes  were  regularly  paid  by  plaintiff;  and, 
on  one  occasion,   procured  his  attorney  to  apply  to  plaintiff  by 
letter  to  purchase  the  land,  prior  to  his  purchase  from  Hamilton, 
Taking  all  these  facts  into  consideration  we    unite  in  holding 
that  the  defendant  had,  at  least,  sufficient  notice  to  put  him  upon 
inquiry  in  respect  to  plaintiff's  title,  and  that  he  cannot  be  con- 
sidered a  bona  fide  purchaser  without  notice.     Under  these  cir- 


David  v.  Rickabaugh.  743 

cumstauces  the  defendant  was  bound  to  inquire  into  the  source  of 
plaintiff's  title,  especiall}^  as  his  grantor,  Hamilton,  could  show 
neither  patent  nor  certificate  of  entry  to  any  of  the  land  he  pur- 
ported to  convey. 

The  certificates  were  delivered  to  the  plaintiff"  at  the  time  of  the 
conveyance  to  him  by  Thomas,  and,  upon  tlie  surrender  of  the 
certificates  by  plaintiff",  the  patents  were  delivered  to  and  have 
ever  since  been  held  by  him,  and  we  are  of  opinion  that  the 
issuance  of  the  patents  by  mistake  or  accident,  in  the  name  of 
Hamilton,  did  not,  and  will  not,  in  equity,  change  the  rights  of 
the  parties.  Upon  a  proper  application  and  showing  of  the  facts, 
the  Commissioner  of  the  General  Land  Office  would,  as  he  i)OS- 
sesses  the  authority,  have  canceled  the  patents  and  issued  others 
in  the  name  of  Thomas,  the  assignee  of  the  certificates. 

This  has  been  done  in  like  cases,  and  has  received  the  sanction 
of  the  Supreme  Conrt  of  the  United  States,  in  Bell  v.  Hearne  et 
al.,  supra,  which  was  a  case  where>  a  patent  had  been  issued  by 
mistake,  and  the  land  was  claimed  by  a  purchaser  at  sheriff's  sale 
on  a  judgment  against  the  person  in  whose  name  the  patent 
issued.  Upon  application  to  the  commissioner  the  patent  was 
canceled  and  another  issued  in  the  name  of  the  person  properly 
entitled  thereto. 

Campbell,  J.,  in  delivering  the  opinion  of  the  court,  says  : 

"The  Commissioner  of  the  (reneral  Land  Office  exercises  a 
general  superintendence  over  the  subordinate  officers  of  his 
depai'tment,  and  is  clothed  with  liberal  powers  of  control,  to  be 
exercised  for  the  purposes  of  justice,  and  to  prevent  the  conse- 
quences of  inadvertence,  irregularity',  mistake,  and  fraud,  in  the 
important  and  extensive  operations  of  that  office  for  the  disi)osal 
of  the  public  domain.  The  power  exercised  in  this  case  is  a 
power  to  correct  a  clerical  mistake,  the  existence  of  which  is 
shown  plainly  in  the  record,  and  is  a  necessarry  power  in  the 
administration  of  every  department ; "  and  it  was  accordingly 
held  that  the  Supreme  Court  of  Louisiana  erred  in  conceding  any 
effect  or  operation  to  the  patent  thus  issued  by  mistake  in  the 
name  of  James  Bell,  as  vesting  a  title  in  a  person  of  that  name. 

A  court  of  equity,  when  all  the  parties  are  before  it,  will  do  in 
substance,  though  not  in  form,  the  same  that  the  commissioner 
would  have  done.  Instead  of  giving  efffect  to,  it  will  orant  relief 
against  mistakes.  Reversed. 

Note. — An  assignee  of  a  certificate  of  entrv  need  not  examine  the 


744  BoYCB  i\  Dajnz, 

county  recorfls,  to  learn  if  his  assignor  had  previouslj^  sold  the  laud  by 
deed.  Moore  v.  hvvler,  1  Gil.  (111.).  HIT.  Neither  need  he  record  the 
assignment  of  the  certificate  of  entrj^     Maiiin  v.  Nash,  81  Miss  ,  ;i24. 

The  registration  laws  of  the  State  do  not  embrace  certificates  of  entry 
or  patents,  and  the  doctrine  of  notice  does  not  apph^  to  them.  Himiing- 
t'on  V.  Allai,  44  "Miss..  <154. 

Patents  do  not  come  within  the  pro\isions  of  the  recording  laws  of  the 
State,  where  the  terms  of  the  statute  do  not  specifically  include  them. 
Moron  V.  Palmer.  13  Mich..  367;  Ciir/i.s  v.  Hunting^  6  Iowa,  536. 

A  certified  copy  of  the  record  of  a  patent  from  the  county  recorder,  is 
not  evidence,  as  the  State  law  does  not  require  the  patent  to  be  recorded. 
Lyell  V.  Maynard,  6  McT.ean,  15. 


Samuel  Boyce  r.  William  Danz. 
Supreme  Court  of  Michigan.  —April  Term,  1S74.— 29  Michigan,  146. 

Nawes  ;  ideniiiy. — The  use  of  different  names  by  a  party  is  immaterial 
Avhere  the  question  is  one  of  identity  merely,  and  the  identity  is 
clearly  established.  ^ 

Names;  idem  sonans. — Whether  or  not  the  names  '"  Boyce  ''  and  "  Bice  " 
are  sufliciently  identical  in  sound  to  make  the  rule  of  idem  .sonans  ap- 
plicable : — gucere  ? 

Pre-etiiptioii  hiivs ;  aliens;  dedaraiiou  of  inteidion. — One  of  foreign  birth 
who  is  otherwise  duly  qualified,  is  entitled  under  the  pre-emption 
laws,  after  having  in  due  from  declared  his  intention  of  becoming  a 
citizen,  and  before  becoming  fully  naturalized,  to  file  and  maintain 
a  pre-emption  claim. 

SttUciueid  ;  poftsession  —'l"he  settlement  upon  th<'  land  required  by  the 
pre-emption  laws  is  tliat  of  a  qualified  person  ;  and  the  fact  that 
one  of  foreign  birth  had  been  in  possession  prior  to  the  date  of 
declarhig  liis  intention  to  become  a  citizen,  would  not  preclude  him 
fi-om  pre-empting  the  land  of  which  he  continued  in  possession  ;  and 
his  settlement  would  be  considered  as  commencing  with  the  date 
of  such   declaration  of  intention. 

The  fact  that  one  who  had  thus  been  in  possession  stated  in  his  claim 
that  he  settled  and  improved  the  land  at  the  date  of  his  first  taking 
possession,  where  he  has  otherwise  complied  with  the  law,  as  in  case 
of  a  settlement  made  at  the  date  of  his  becoming  qualified  by  declaring 
his  inientiou  of  becoming  a  citizen,  will  not  invalidate  his  pre-emp- 
tion. 

Ses  adjniicatce  ;  land  office ;  register  and  receicer. — The  action  of  the 
registei"«and  receiver  of  the  United  States  land  office  in  accepting 
the  proofs  furnished  by  a  pre-emptor  as  satisfactory,  and  receiving 
his  money  and  issuing  to  him  the  usual  duplicate,  is  a  judicial  deter- 


BoYCE  V.  Danz.  745 

rninution  of  his   rijihts,  which  is   conclusive   in   all  collateral    pro- 
ceedings. 

Eeview  ;  (■oimnisaioner  nf  land  office  ;  tx  porte  proceedings.  —  Whether  or  not 
the  commissioner  of  the  laud  office  has  any  authority  under  the  stat- 
ute to  review  and  reverse  the  action  of  the  register  and  receivei:, 
where  there  is  no  adverse  claim  under  the  pre-emption  laws,  his 
action,  relied  upon  in  this  case,  in  exercising  such  right  without 
notice  to  the  party  concerned,  and  thus  overturning  a  formal  adjudi- 
cation without  the  privilege  of  a  hearing,  was  contrary  to  the  first 
principles  of  right ;  and,  moreover,  it  was  foinided  on  a  mistake  of 
the  facts. 

Ecjuiiyjiirmprudtinc. ;  Pideiitee  ;  trusts. — A  court  of  equity  may  in  a  proper 
case  adjudge  the  patentee  of  lands  to  hold  as  trustee  for  one  liaving 
greater  equities. 

Laches  ;  possession. — A  delay  of  live  ye.irs  by  a  party  in  possession  in  fil- 
ing a  bill  to  obtain  the  legal  title,  will  not  bar  his  equity  where 
nothing  has  been  lost  by  the  other  party  in  consequence. 
This   case   and    drmpan  v.    Van  Dyke,  1-5   Mich.,  371   distinguished. 
Heard  .lanuarj'  S.     1  >ecided  April, 8. 

Appeal  in  Chancery  from  Wayne  Circuit. 

Divine  4-  Wixson  and  C.  I.  Walker  for  complainant. 

Moore  (^-  Griffin  and  Theodore  Romeyn  for  defendant. 

COOLEY,  J.  : 

The  bill  in  this  case  is  filed  to  have  a  certain  parcel  of  land 
which  has  been  patented  by  the  United  States  to  the  defendant, 
decreed  to  be  equitably  the  property  of  the  complainant,  and  to  be 
held  by  the  defendant  in  trust  for  him.  The  complainant's  rights 
are  rested  upon  the  pre-emption  laws  of  the  United  States,  while 
the  defendant  relies  upon  his  patent,  and  upon  certain  defects  in 
complainanst's  claim  which  are  supposed  to  defeat  it. 

The  facts  in  the  case,  as  we  find  them  established  by  the  evi- 
dence, are  as  follows  : 

Complainant  went  upon  the  premises,  which  he  found  unoccu- 
pied, some  time  in  February,  1857.  The  land  then  belonged  to 
the  United  States,  and  was  subject  to  pre-emption  settlement,  and 
complainant  was  in  all  respects  qualified  to  make  such  a  settle- 
ment, except  that,  being  of  foreign  birth,  he  had  not  become 
naturalized  or  declared  his  intention  so  to  do.  On  the  5th  of 
March,  1857,  however,  he  declared  his  intention  in  due  form,  but 
in  the  name  of  Samuel  Bice,  which  he  seems  sometimes  to  have 
gone  by. 

On  the  same  day  he  filed  his  pre-emption  claim  to  this  land. 


746  BoYCE  V.  Danz. 

AVitliin  the  same  month  he  completed  a  log-house  on  the  land,  and. 
took  his  father  and  mother  to  live  witli  him  in  it.  On  the  31st  of 
March.  1857,  defendant  entered  the  same  land  at  the  land  office, 
liaving  at  the  time  notice  of  complainant's  occupation  and  claim. 
On  March  1,  1858,  complainant  paid  for  his  land,  having  previously 
furnished  to  the  register  and  receiver  of  the  land  office  at  Detroit 
the  proofs  to  their  satisfaction  of  his  riglit  as  a  pre-emptioner.  A 
duplicate  in  evidence  of  his  right  to  a  patent  was  then  issued  to 
him.  On  October  18,  1858,  the  Commissioner  of  the  General  Land 
Office  wrote  to  the  register  and  receiver  at  Detroit,  that  complain- 
ant's proofs  were  defective  on  certain  points  specified,  and  that 
additional  evidence  must  be  produced.  It  was  not  shown  that 
this  letter  was  ever  brought  to  the  notice  of  complainant,  and  he 
testified  that  it  never  was.  Three  years  later  the  entry  of  the 
defendant  was  canceled  by  the  commissioner,  but  on  Ma}'^  5th, 
1862,  the  commissioner  wrote  to  the  register  and  receiver  that 
"it  appears  that  when  Mr.  Boyce  made  his  entry,  March  1,  1858, 
Mr.  William  Danz  was  residing  on  this  laud,  and  that  he,  in  fact, 
was  the  first  settler."  and  adding  that  Danz's  entry  was  unadvis- 
edly canceled  ;  that  his  proofs  and  showing  at  the  office  justified 
his  reinstatement,  and  that  Mr.  Boyce' s  entry  was  accordingly 
canceled.  There  was  no  showing  and  no  claim  in  this  suit  that 
the  statement  in  the  commissioner's  letter  regarding  the  residence 
of  Danz  on  the  land  when  complainant  made  his  entr3^  had  any 
foundation  in  fact,  and  it  was  a  mistake  beyond  question. 

Defendant  however,  was  now  recognized  at  the  General  Land 
Office  as  the  lawful  claimant  to  the  land,  and  on  July  10.  1862,  a 
patent  was  issued  to  him.  Complainant  in  the  meantime  had 
continued  in  possession  of  the  land,  and  had  made  valuable  improve- 
ments upon  it.  These  facts  would  appear  to  show  an  equitable  right 
in  complainant  superior  to  that  of  the  defendant,  and  to  entitle 
him  to  the  relief  he  seeks,  unless  his  failure  to  comply  with  some 
requirements  of  the  pre-emption  laws  precluded  him  from  their 
benefits  ;  and  it  now  becomes  necessary  to  determine  whether 
such  a  failure  had  occurred.  As  it  may  fairly  be  assumed  that  the 
counsel  for  defendant  have  in  their  argument  suggested  all  the 
defects  that  are  sup])03ed  to  exist,  we  may  confine  our  attention 
to  the  propositions  relied  upon  by  them,  taking  it  for  granted  that 
they  direct  us  to  all  tlie  weak  points  in  complainant's  case. 

The  first  objection  relied  upon  is  the  discrepancy  between  the 
name  made  use  of  by  the  complainant  in  declaring  his  intention 


BoYCE  V.  Danz,  747 

to  become  a  citizen,  and  that  in  which  he  made  his  entry  and 
brino-s  this  suit.  The  names  "  Boyce,"  and  ''  Bice"  it  is  said,  are 
not  idem,  sonaus.  and  presumptively  belong  to  different  persons. 
We  have  already  said  that  the  evidence  shows  them  to  have  been 
both  used  by  complainant,  and  as  this  is  a  question  of  identity, 
and  the  identity  is  established  to  the  satisfaction'of  the  court,  this 
objection  would  seem  to  be  removed.  If  the  evidence  had  left  the 
identity  in  doubt,  it  ntight  be  worthy  of  consideration  wliether  the 
two  words  as  commonly  pronounced,  especially  by  foreigners,  are 
not  sufficiently  identical  in  sound  to  make  the  rule  of  idem  souans 
applicable  ;  but  we  need  not  discuss  the  point  on  this  record. 

A  further  objection  is  that  complainant  never  became  a  citizen  ; 
and  liis  failure  to  take  all  the  steps  necessary  to  that  end.  it  is 
said,  is  in  contravention  of  the  policy  of  the  pre-emption  laws, 
and  deprives  him  of  all  claim  upon  the  equitable  consideration  of 
the  court.  The  policy  of  the  pre-emption  laws  is  to  be^learned 
from  the  laws  themselves,  and  in  terms  they  confer  rights  upon 
those  who  are  citizens  or  declare  their  intention  to  become  such, 
who  occupy  the  land  and  make  the  necessary  proofs  and  payment. 
No  officer  and  no  court  has  any  authority  to  add  further  condi- 
tions ;  but  it  is  a  circumstance  worthy  of  remark  tliat  by  force  of 
our  constitution  and  laws  the  complainant,  by  his  declaration  of 
intention  and  subsequent  residence  in  the  State,  became  entitled 
to  exercise  the  elective  franchise  and  to  hold  office,  and  was  vested 
with  nearly  all  the  rights  and  privileges  of  a  naturalized  citizen  : 
and  he  miglit  well  suppose,  as  most  persons  would  be  likely  to 
under  such  circumstances,  that  anything  further  was  not  called 
for. 

It  may  not  be  an  unreasonable  inference  that  the  pre-emption 
laws  have  had  the  State  laws  of  this  and  other  States  in  view,  and 
that  it  was  not  thought  important  or  politic  to  require  more  from 
pre-emptioners  than  was  required  to  make  them  citizens  of  some 
of  the  States  and  participants  in  congressional  and  other  elec- 
tions. 

It  is  objected  further  that  complainant  did  not  perfect  his  right 
b}^  payment  witliin  twelve  months  after  his  settlement,  as  was 
required  by  the  pre-emption  laws.  The  particular ,  law  referred 
to  is  the  act  of  September  4.  1841.  "^  lo,  of  whicli  (Bright  Dig., 
574,  §  88),  provides  that  whenever  an}'  person  shall  settle  and 
improve  a  tract  of  land  subject  at  the  time  of  settlement  to  pri- 
vate entry,  and  shall  intend  to  purchase  the  same  under  the  pro- 


748  BoYCE  V.  Danz. 

visions  of  the  act,  he  sli.ilh  within  thirty  days  after  the  date  of 
settlement,  file  witli  the  res^ister  of  the  district  a  written  state- 
ment describing  tlie  land  settled  upon,  and  declaring  the  inten- 
tion of  such  person  to  claim  the  same  under  tlie  provisions  of 
said  act ;  and  that  within  twelve  months  after  settlement  lie  shall 
make  proofs,  as  by  the  act  required,  and  also  pay  for  the  land  ; 
and  in  case  of  any  failure  the  land  shall  l)e  subject  to  entry  by 
any  other  person.  ' 

As  already  stated,  complainant  went  upon  the  land  in  Febru- 
ary, 1857,  but  he  had  not  then  declared  his  intention  to  become  a 
citizen,  nor  did  he  make  that  declaration  until  the  fiftli  day  of 
the  next  month,  liefore  that  daj'^  it  was  not  competent  for  him 
to  file  a  pre-emption  claim,  or  to  claim  any  benefit  under  the  act. 
His  claim  was  in  fact  filed  on  the  fifth  day  of  March,  the  same 
day  he  declared  his  intention  to  liecome  a  citizen,  and  the 
proofs  are  clear  that  within  twelve  months  from  tliat  time  he 
made  his  proofs  and  paid  for  the  land. 

The  defect  in  his  right  then,  if  any,  must  be  either,  first,  that 
he  was  in  possession  of  the  land  before  he  was  competent  to 
make  a  pre-emption  claim  ;  or,  second,  that  in  his  claim  he  stated 
that  "on  the  20th  day  of  February.  1857,  he  settled  and  improved" 
the  land  now  in  dispute,  and  is  consequently  estopped  from  dating 
the  commencement  of  his  settlement  under  the  act  at  any  later 
day.  On  the  first  ground  he  certainly  could  not  be  i^i-ecluded. 
It-  would  be  an  extraordinary  construction  to  put  upon  the 
pre-emption  laws  that  one  should  be  wholly  excluded  from  their 
benefits  because  he  has  had  already  been  for  a  year  in  possession 
of  the  land,  but  not  during  that  time  qualified  to  take  the  benefit 
of  their  provisions. 

The  settlement  contemplated,  as  it  seems  to  us,  must  be  the 
settlement  of  a  qualified  person  ;  and  that  of  the  complainant 
must  consequently  be  deemed  to  have  begun  on  the  5th  of  March, 
1857.  And  we  may  reasonably  suppose  this  to  have  been  the 
understanding  of  the  complainant,  who  appears  to  have  acted  in 
strict  accoi'dance  with  that  view,  though  in  filing  his  claim  he 
may  have  thought  it  necessary  to  state  with  accuracy  the  time 
when  he  topk  possession  and  began  improvements. 

If  we  are  correct  in  this,  the  case  of  complainant  would  appear 
to  be  made  out :  but  if  we  err  in  our  conclusion,  the  fact  still 
remains  that  the  register  and  receiver  of  the  land  office  have 
accepted  the  proofs  furnished  by  complainant  as  satisfactory,  and 


JBoYCE  V.  DaxXz.  749 

have  taken  his  money  and  issued  tlie  usual  duplicate.  And  the 
question  would  then  be  presented  whether  their  conclusion  is  not 
binding  upon  us,  even  though  we  might  regard  it  as  erroneous. 

,  Under  the  statute  the  proofs  are  to  be  made  to  the  satisfaction 
of  these  two  officers.  (Stat.,  4  Sept.,  1841,  §  12  :  Bright  Dig.,  473  ; 
§85.)  These  officers  act  judicially  in  passing  upon' the  proofs. 
{Wilcox  V.  Jackson,  13  Pet.,  498  ;  Lytle  v.  State,  9  How.,  333,)  and 
we  have  not  been  referred  to  any  statute  which  authorizes  the 
Commissioner  of  the  General  Land  Office  to  review  and  reverse 
their  action,  in  cases  like  this,  where  there  was  no  adverse  claim 
under  the  pre-emption  laws.  And  if  he  had  the  power  it  would  be 
contrary  to  the  first  principles  of  right  that  he  should  exercise  it 
without  giving  notice  to  the  party  concerned,  and  thus  vacate  a 
formal  adjudication  withoiit  the  privilege  of  a  hearing.  And  the 
action  of  the  commissioner  in  this  case  appears  to  have  been  not 
only  entirely  ex  parte,  but  also  to  liave  been  founded  upon  a  mis- 
take as  to  the  facts. 

It  is  not  disputed  by  defendant  that  a  court  of  equity  may.  in 
a  proper  case,  adjudge  the  patentee  to  hold  as  trustee  for  one 
having  greater  equities,  when  a  proper  case  is  made  out.  The 
authorit}^  has  often  been  asserted  by  the  .Supreme  Court  of  the 
United  States,  and  the  principles  on  which  it  is  to  be  exercised 
are  well  understood.  It  will  be  sufficient  in  this  case  to  refer  to  a 
few  of  the  cases.  {Bagnell  v.  Broderick,  13  Pet.,  436  ;  Garland 
V.  Wymi,  20  How.,  8  ;  Lytle  v.  Arkansas,  22  How.,  193  ;  Clements 
V.  Warner.  24  How.,  394';  Lindsey  v.  Haives.  2  Black,  559  ;  Stark 
V.  Starrs,  6  Wall.,  402  ;  .Johnson  v.  Totvsley.  13  Wall..  72  ;  Frisbie 
V.  Whitney,  9  Wall.,  196.) 

The  defendant,  however,  insists  that  complainant  has  been 
guilty  of  laches  and  has  lost  his  rights  thereby,  and  he  refers  to 
Campan  v.  Van  Dyke,  15  Mich.,  371,  as  furnisJiing  support  to 
this  position.  The  two  cases  have  no  analogy.  There  a  party 
out  of  possession  attacked  a  decree  in  chancery  for  fraud,  after  a 
delay  of  more  than  six  years,  which  had  been  prolonged  until  the 
principal  actors  in  the  suit  in  which  the  decree  had  been  rendered 
had  been  taken  away  by  death,  and  until  in  consequence  explana- 
tions had  become  impossible.  The  court,  it  is  believed  justly, 
required  satisfactory  excuse  for  the  delay;  and  none  was  given. 
In  this  case  the  complainant  has  all  the  time  been  in  the  enjoy- 
ment of  his  property,  and  was  therefore  not  called  upon  to  exer- 
cise the  same  diligence  which  miglit  have  been  required  of  one 


750  Litchfield  v.  Johnson. 

who  was  kept  out  of  the  rights  he  claimed  ;  and  we  find  nothing 
in  the  case  to  satisfy  us  that  defendant  has  been  injured  by  the 
delay. 

When  complainant's  right  was  assailed  he  defended  it,  and 
when  the  legal  defence  was  found  insufficient,  he  resorted  to  a 
court  of  equity.  He  has  not  been  as  diligent  as  he  might  have 
been,  but  a  delay  of  five  years  by  a  party  in  possession  in  filing  a 
bill  to  obtain  the  legal  title  cannot  be  regarded  as  sufficient  to 
bar  his  equity,  where  nothing  has  been  lost  by  the  other  party  in 
consequence. 

The  decree  of  the  court  Jjeloiv  appears  to   he  correct,  and  it 
must  6e  affirmed,  tvith  costs. 

Gravks,  Ch.  J.,  and  Campbell,  J.,  concurred. 
Christiancy,  J.,  did  not  sit  in  this  case. 

If  a  person  assume  a  name  not  his  own,  and  enter  land  in  such  name^ 
the  patent  issued  to  him  under  such  assumed  name,  is  valid.  Thomas  v. 
Wyait,  31  Mo..  188. 


Edwin  C.  Litchfield  v.  Olaf  Johnson  and  Lewis  Johnson. 
U.  S.  Circuit  Court,  District  of  lo^^a,  1877.— 4  Dillon.  551. 

1.  Settlers  on  what  are  known  as  the  Des  Moines  river  lands,  in  Iowa, 

may  be  entitled  to  the  benefits  given  by  the  statute  to  occupying 
claimants  when  they  have  made  valuable  improvements  on  lands  of 
which  they  are  afterwards  adjudged  not  to  be  the  rightful  owners. 

2.  The  "occupying  claimants,"  statute  of  Iowa,  as  to  "color  of  title" 

and  "good  faith,"  construed.* 

Before  Dillon  and  Love,  JJ.  : 

Occupying  Claimant — Compensation,  for   Tmpjrovements — "  Color 
of  Title"— Good  Faith. 

On  April  24th,  1874,  Litchfield  commenced  an  action  of  eject- 
ment against  the  defendants  for  the  south  half  of  the  southeast 
quarter  of  section  9,  township  86,  range  26,  and  at  the  May  term, 
1874,  recovered  judgment.  Thereupon  the  defendants,  under  tlie 
statutes  of  Iowa,  filed  their  petition  as  occupying  claimants  (Re- 
vision, sec.  2,264,  Code,  sec.  1,976),  claiming  to  be  allowed  for 
improvements  made  by  them  on  the  land  under  color  of  title  and 


Litchfield  v.  Johnson.  751 

in  good  faith.  Issue  was  taken  on  tliis  petition,  and  the  case  thus 
made  was  referred  by  consent  to  John  N.  Rogers.  Esq.,  as  referee, 
who,  after  hearing  the  evidence,  found  the  following  conclusions 
of  fact  and  of  law  : 

Conclusions  of  Fact. — The  defendants  entered  upon  and  took 
possession  of  the  land  in  question  in  the  fall  of  the  3'ear  1866, 
having  no  claim  or  color  of  title  thereto,  but  under  tlie  belief  that 
said  land  was  the  property  of  the  United  States,  and  open  to  pre- 
emption, and  with  the  intent  to  pre-empt  the  same,  or  to  enter  it 
under  the  homestead  act,  and  the}""  have  ever  since  contimied  in 
such  possession,  holding  adversely  to  all  parties  except  the  United 
States. 

Under  the  belief  aforesaid  the}'  made  improvements  on  said 
land,  of  which  the  present  value  is  three  hundred  and  seventy- 
five  dollars  ($375.)  All  of  said  improvements,  excepting  fifty 
dollars  in  value  thereof,  were  made  before  the  expiration  of  five 
years  from  the  time  when  said  defendants  took  possession  of  said 
land,  and  before  they  had  acquired  color  of  title  thereto.  De- 
fendants have  never  acquired  any  color  of  title  to  said  land  other- 
wise than  by  virtue  of  their  occupancy  thereof  for  five  years.  The 
value  of  said  land,  aside  from  said  improvements,  is  six  hundred 
and  eighty  dollars  (|680.)  The  value  of  the  rents  and  profits  of 
said  land,  aside  from  the  improvements  during  the  time  of  defend- 
ants' occupancy  thereof,  is  the  sum  of  twent3'-five  dollars  ($25.) 

Conclusions  of  Laic. — 1.  Defendants  had  color  of  title  to  said 
land  from  the  expiration  of  five  years  from  the  time  when  they 
entered  on  the  same,  and  up  to  the  beginning  of  this  action,  by 
virtue  of  their  five  years'  occupancy  thereof. 

2.  The  improvements  were  made  by  them  in  good  faith. 

3.  The  defendants  are  entitled  to  be  allowed  the  value  of  their 
improvements  as  provided  by  the  statute,  including  those  made 
before  they  acquired  color  of  title. 

This  appears  to  me  to  be  a  very  doubtful  point  or  principle, 
and  I  am  induced  to  hold  thereon  as  above  cited,  chiefly  because 
it  it  stated  by  counsel  for  defendants  to  have  been  so  held  by  his 
honor  the  circuit  judge  in  the.  case  of  Lancaster  v.  Crouse,  in  this 
court,  and  because,  on  examinatiou  of  the  papers  in  that  case, 
including  the  instructions  to  the  jury  given  and  refused,  it  appears 
probable  that  such  a  view  was  then  taken  by  the  court,  although 
it  does  not  appear  with  entire  clearness. 

4.  If  the  court  should  agree  with  me  in  the   point  last  men- 


752  Litchfield  v.  Johnson. 

tioned,  then  defendants  are  entitled  to  a  judgment,  ascertaining 
tlie  riglits  of  tlie  parties,  in  conformity  to  the  provisions  of  sec- 
tions 1,979-1,981,  of  the  Code  of  Iowa,  on  the  basis  of  tlie  findings 
hereinbefore  contained,  as  to  the  value  of  the  land,  of  the  improve- 
ments, and  of  the  i-ents  and  profits  ;  that  is,  the  amount  to  be  paid 
defendants  for  their  improvements  should  be  fixed  at  three  hun- 
dred and  fifty  dollars,  being  the  present  value  of  the  improve- 
ments, less  the  value  of  the  rents  and  profits  of  the  land,  as 
improved  during  its  occupancy  by  defendants. 

But,  if  the  court  should  be  of  opinion  that  defendants  are  not 
entitled  to  be  allowed  for  improvements  made  before  they  acquired 
color  of  title,  then  tlie  judgment  should  provide  for  payment  to 
defendants  of  only  twenty-five  dollars  on  account  of  their  improve- 
ments. 

5.  As  nothing  is  provided  by  the  statute  in  respect  to  a  judg- 
ment for  costs  in  favor  of  either  party,  on  such  proceedings,  I  am 
of  the  opinion  that  each  party  must  pay  his  own  costs. 

The  plaintiff  in  the  main  action  (Litchfield)  excepted  to  this 
report  on  tlie  ground,  first,  that  the  evidence  did  not  establish  that 
the  improvements  were  made  in  good  faith  ;  and  for  the  reason, 
second,  that  the  claimants  cannot  be  allowed  for  improvements 
made  during  the  first  five  years  of  their  occupancy,  but  only  for 
those  made  after  the  expiration  of  five  years  from  the  time  they 
entered  on  the  premises,  and  prior  to  the  commencement  of  this 
action.     On  these  exceptions  the  case  is  now  before  the  court. 

Wright,  Gatch  <$-  TVright  for  the  plaintitf. 

Duucombe,  O'ConneU  Sr  Springer  for  the  occupying  claimants. 

I, 
Dillon,  Circuit  Judge  : 

The  amount  involved  in  this  particular  case  is  small,  but  the 
case  itself  is  important,  as  the  principles  of  law  which  apply  to 
it  are  decisive  of  a  large  number  of  like  causes  pending  in  the 
court. 

1.  The  referee  has  found,  as  a  fact,  that  the  defendants,  in  the 
fall  of  1866,  entered  on  the  land,  the  same  being  then  vacant, 
under  the  belief  that  it  was  the  property  of  the  United  States., 
open  to  pre-emption,  with  the  intent  to  pre-empt  it  or  enter  it  under 
the  homestead  act,  and  have  ever  since  continued  in  possession, 
holding  adversely  to  all  parties  except  the  United  States.  This 
finding  of  fact  is  sustained  by  the  proofs,  and  supports  the  legal 
conclusion  that  the  improvements  were  made  "in  good  faith," 


Litchfield  v.  Johnson.  753 

witliin  the   meaning    of  tlie   ocoiypyiny   claimant   statute  of  this 
State. 

The  extent  of  the  l)es  IMoines  river  grant  had,  it  is  well  known, 
been  the  subject  of  conflicting  decisions  on  the  part  of  the  execu- 
tive branch  of  the  government,  previous  to  the  December  term, 
1866,  of  the  Supreme  Court,  when  the  case  of  Walcott  v.  The 
Des  Moines  River  Conqmny  (.5  Wall.,  681),  was  decided,  which 
was  after  the  defendant  took  possession  of  the  land,  and  in  i-espect 
of  which  the  defendant,  a  foreigner,  almost  unacquainted  with 
our  language,  testifies  he  knew  nothing,  and  it  was  not  until  the 
December  Term,  1869,  that  the  case  of  WeUs  v.  Eihy  was  deter- 
mined, in  which  it  was  first  held  that  the  permission  of  the  local 
land  officers  to  occupants  to  prove  possession  and  improvements, 
and  to  make  entry  of  these  Des  Moines  river  lands,  under  the 
pre-emption  laws,  was  unauthorized  and  void.  There  is  nothing 
in  the  history  of  this  grant,  whether  legislative,  executive,  or 
judicial  which  makes  it  impossible,  or  even  improbable,  that 
settlers  upon  these  lands  prior  at  least,  to  the  final  decision  of 
Wells  V.  Riley,  might  not  be  such,  in  good  faith,  as  respects  the 
title  held  by  the  plaintiff.     {WeMs  v.  Riley,  2  Dillon,  566.) 

2.  But  the  principal  question  in  the  case  is.  whether,  conceding 
the  "  good  faith"  of  the  claimants,  they  are  entitled  to  be  allowed 
for  all  valuable  improvements  made  prior  to  the  beginning  of  the 
ejectment  suit,  or  only  those  made  prior  to  that  time,  and  after 
the  expiration  of  five  years  from  the  time  of  entering  on  the  land. 

The  language  of  the  statute  giving  the  right  of  compensation 
to  the  claimant  in  this  form,  is,  ''  where  an  occupant  of  land  has 
color  of  title  thereto,  and.  in  good  faith,  has  made  any  valuable 
improvements  thereon,  and  is  afterwards  found  not  to  be  the 
rightful  owner."'  he  shall  be  entitled  to  pay,  in  the  manner  pro- 
vided, for  such  improvements.  It  is  insisted  by  the  plaintiff  that, 
to  entitle  the  occupant  to  compensation  for  his  improvements, 
"  it  must  appear  that  they  were  made  in  good  faith,  and  under 
oolor  of  title  ;  in  other  words,  color  of  title  must  concur,  co-exist, 
with  good  faith,  at  the  time  of  making  the  improvements." 
Hence,  as  in  this  case,  color  of  title  depends  upon  five  years'  pos- 
session (Revision  of  1860,  sec.  2.269),  no  improvements  made 
during  the  five  years,  though  made  in  good  faith,  can  be  consid- 
ered, while  for  all  that  were  made  after  the  lapse  of  the  five  years, 
compensation  may  be  allowed.  The  language  of  the  statute 
above   quoted    is   not    free    from    ambiguity.     The    words    used 

48 


754  Litchfield  v.  Johnson, 

might  be  made  to   bear  the  construction  contended  for  by   the 
plaintiff. 

I  have  carefully  considered  the  reasons  for  that  construction, 
which  were  so  ably  urged  by  the  plaintiff's  counsel  at  the  bar, 
and  enforced  with  additional  illustrations  and  learning  in  his 
printed  argument,  without  being  convinced  that  it  is  the  neces- 
sary or  true  meaning  of  the  statute.  An  equally  natural  mean- 
ing of  the  words  used,  is,  that  the  "  color  of  title "  must  exist 
before  and  at  the  time  when  the  suit  of  the  rightful  owner  is 
brought  against  the  occupant,  in  which  case  the  occupant  may  be 
compensated  for  any  valuable  improvements  made  thereon  in 
good  faith,  the  statute  prescribing  no  limitation  as  to  the  time 
when  they  were  made.  These  remedial  statutes  are  entitled  to  a 
fair  and  even  liberal  construction  {Longirorth  v.  Wortliington,  6 
Ohio,  10) ;  and  the  view  we  adopt  harmonizes  with  the  evident 
policy  of  the  legislature,  as  shown  by  the  expressed  provisions 
made  by  the  legislature  of  Iowa,  to  extend  to  the  settlers  "  on 
any  of  the  lands  known  as  the  Des  Moines  river  lands,"  the 
rights  given  by  the  occupying  claimant  statute  (Revision  of  1873, 
sees.  1,984,  1,987.) 

We  do  not  place  our  judgment  upon  the  legislation  last  men- 
tioned, since  the  improvements  in  this  case  were  largel}^  made 
before  that  time,  although  this  legislation  preceded,  by  several 
years,  the  suit  brought  to  recover  possession. 

It  is  by  no  means  clear  that  the  equities  of  an  occupant,  who, 
in  good  faith,  has  made  improvements  during  a  period  Avhen  the 
real  owner  was  negligent  in  asserting  his  rights,  may  not  be  pro- 
vided for  by  retrospective  legislation  ;  but  it  is  not  necessary  to 
enter  upon  the  consideration  of  that  question,  as,  in  my  judg- 
ment, the  claimant's  ease  is  embraced  in  the  provisions  of  the 
general  statute.  (Revision,  sec.  2,264  ;  Code,  sec.  1,976  ;  Society, 
etc;.,  V.  Pawlet,  4  Pet.,  480  ;  Albee  v.  May,  2  Paine,  74  ;  Green  v. 
Biddle,  5  Pet.,  381.) 

The  exceptions  to  the  report  of  the  referee  ai-e  disallowed,  and 
judgment  will  be  entered  in  conformity  therewith. 

Judgment  accordingly. 

Love,  J.,  concurs. 

{Mn.  Justice  Miller,  to  whom  the  record  and  arguments  in 
this  cause  were  submitted,  expressed  his  concurrence  in  the  fore- 
going opinion. — Rep.) 


HoGAN  V.  Page.  755 

Note. — The  holder  under  a  void  patent  is  entitled  to  relief  under  the 
occupying  claimant  law.  Chiim  v.  Darndt,  4  McLean,  4  K).  If  one  pur- 
chase from  an  Indian  reservee  while  a  sale  by  him  is  prohibited  and  go 
into  possession  under  the  purchase,  and  make  improvements  on  the 
land,  and  the  land  is  afterward  legally  sold  to  another  by  the  Indian, 
the  lirst  purchaser  is  entitled  to  pay  for  his  improvement  under  the  occu- 
pying claimant  law  of  the  State.  A'/o//.'?  v.  i/^'vfy/.v,  12  Kansas,  ;^3o.  See 
lown  R.  B.  and  L.  Co.  v.  Adkim,  3S  Iowa,  3.51.  Also  see  the  case  of 
JUdi/iien  V.  Venh,  20  Kansas,  374,  where  the  doctrine  is  held  not  to  apply. 

The  act  of  the  State  legislature  of  March  30,  1868,  which  provided  that 
improvement  placed  on  public  lands  of  the  United  States,  may  be  remo\  ed 
after  the  land  shall  have  been  sold,  is  void,  so  far  as  it  authorizes  the 
removal  of  improvements  which  constitute  part  of  the  realty.  Collins 
V.  Bartldf,  44  ( 'al..  371.  and  Pennybecker  v.  McDmigai,  48  (.al..  KK). 


HoGAN  V.  Page. 
December  Term,  1864.— 2  Wallace,  60.5. 

1,  A  patent  certificate,  or  patent  issued,  or  a  confirmation  made  to  an 

original  grantee  or  his  '"''  legal  rcprrsentuiires''''  embraces  representa- 
tives of  such  grantee  by  contract,  as  well  as  operation  of  law ; 
leaving  the  question  open  in  a  court  of  justice  as  to  the  party  to  whom 
the  certificate,  patent,  or  confirmation  should  enure. 

2.  Ihe  fact  that  \,  many  years  ago,  did  present  to  a  board  of  commis- 

sioners appointed  by  law  to  pass  upon  imperfect  titles  to  land,  a 
"claim  ■"  to  certain  land,  describing  it  as  "formerlj-  "  of  B.  an  admit- 
ted owner ;  the  fact  that  the  board  entered  on  its  minutes  that  A. 
"assignee  "  of  B.  presented  a  claim,  and  that  the  board  granted  the 
land  to  ''representatives''  of  B,  and  the  fact  that  A,  with  his  family 
was  in  possession  of  the  land  many  years  ago,  and  cultivating  it.  are 
facts  which  tend  to  prove  an  assignment;  and  as  such,  in  an  eject- 
ment where  the  facts  of  an  assignment  is  in  issue,  should  be  submitted 
as  evidence  to  the  jury. 

Ekkor  to  the  Supreme  Court  of  Missouri ;  the  case  being  thus  : 
After  the  cession  in  1803,  by  France,  of  Louisiana,  to  the  United 
States,  Congress  passed  an  act  (Act  of  3d  March,  1807,  2  Stat,  at 
Large,  440).  establishing  a  board  of  commissioners  at  St.  Louis, 
for  the  purpose  of  settling  imperfect  French  and  Spanish  claims. 
The  act  provided  that  any  person  who  had.  for  ten  consecutive 
years  prior  to  the  20th  December,  1803,  been  in  possession  of  a 
tract  of  land  not  owned  by  any  other  person,  &c.,  "should  be  con- 
firmed in  their  titles." 


756  HooAN  V.  Page. 

Ill  1808,  one  Louis  Lamonde  presented  a  claim  for  a  tract  of 
one  l)y  forty  arpens,  "formerly  the  property  of  Auguste  Conde." 
The  minutes  of  the  board  of  November  13th,  1811,  disclosed  the 
following  proceedings  : 

'■Louis  Lamonde,  iissignee  of  Auouste  Conde,  claiming  one  by  forty 
iirpens,  situate  in  the  Big  Prairie  district  of  St.  I>ouis,  produces  a  conces- 
sion from  St.  Ange  and  Labuxiere,  lieutenant  governor,  dated  10th 
.January,  1770.  (I'his  concession,  about  which  there  was  no  dispute,  was 
to  Conde.)  The  board  granted  to  the  representatives  of  Auguste  Conde 
forty  arpens,  under  the  provisions  of  the  act  of  Congress,  c<5C.,  and 
ordered  that  the  same  be  surveyed,  conformably  to  possession,"  &c. 

The  minutes  did  not  record  the  fact  that  a.ny  assignment  of  this 
land  from  Conde  to  Lamonde  had  been  presented  to  the  board, 
or  that  other  proof  was  made  of  such  conveyance. 

This  decision  of  the  board,  among  many  others,  was  reported  to 
Congress,  and  the  title  made  absolute  by  an  act  of  12th  April, 
1814.  In  1825,  Lamonde  obtained  from  the  recorder  of  land  titles 
a  certificate  of  the  confirmation. 

Hogan  claiming  through  Lamonde,  now,  A.  D.  1850,  brought 
ejectment  at  St.  Louis,  against  Page,  for  a  part  of  this  land. 
Lamonde  was  an  old  inhabitant  of  St.  Louis,  who  had  died  some 
ten  years  before  the  trial  at  a  very  advanced  age  ;  and  there  was 
some  evidence  on  the  trial  that  he  and  his  family  cultivated  this 
lot  in  the  Grand  Prairie  at  a  very  earl}-  day,  before  the  change  of 
government  under  the  treaty  of  1803  ;  and  evidence  that  by  the 
earl}'^  laws  of  the  region  these  interests  passed  by  parol. 

The  court  below  decided  that  the  plaintiff  was  not  entitled  to 
recover  upon  the  evidence  in  the  case. 

Mr.  Gantt  for  the  defendant  here  and  below,  in  support  of  this 
ruling  insisted  here  that,  as  no  assignment  or  transfer  of  Conde' s 
interest  in  the  concession  was  proved  before  the  land  board  or  at 
the  trial,  the  confirmation  could  not  enure  to  the  benefit  of  La- 
monde, so  as  to  invest  him  with  the  title  ;  and  that,  in  the  absence 
of  the"  assignment,  the  confirmation  "to  the  representatives  of 
Auguste  Conde"  enured  to  the  benefit  of  his  heirs. 

Messrs.  Browning,  HiU,  and  Eiving  argued  contra  for  the 
plaintiff,  that,  as  Lamonde  presented  his  claim  to  the  board,  as 
assignee  of  Conde,  and  as  such  set  up  a  title  in  his  notice  of  the 
application,  the  act  of  the  board  should  be  regarded  as  a  confirm- 
ation of  his  right  or  claim  to  the  land  ;  and  the  cases  of  Strother 
v.  Lucas  (12  Peters,  453),  Bissell  v.  Penrose  (8  Howard,  338),  and 


HoGAN  V.  Page.  757 

Lundes  v.  Brant  (10  Howard,  370).  in  this  court,  were  relerred  to 
as  supporting-  tins  view  of  tlie  confirmation. 

Mil.  Jtstk  K  Nklson  delivered  tlie  opini(jn  of  tlie  court. 

On  looking  into  tlie  cases  cited  on  tlie  part  of  the  plaintiff,  it 
will  be  seen  that  the  confirmations  which  there  appeared  were 
either  to  the  assignee  claimant  by  name,  or  in  general  terras,  that 
is,  to  the  original  grantee  and  "  his  legal  rei)resentatives  ; "  and 
when  in  the  latter  form,  it  was  the  assignee  claimant  who  had 
presented  the  claim  before  the  board,  and  had  furnished  evidence 
before  it  of  its  derivative  title,  and  which  had  not  been  the  subject 
of  dispute.  The  present  case,  therefore,  is  different  from  either 
of  the  cases  referred  to. 

A  difficulty  had  occurred  at  the  laud  office,  at  an  early  day,  in 
respect  to  the  form  of  patent  certificates  and  of  patents,  arising 
out  of  applications  to  have  them  issued  in  the  name  of  the  assignee? 
or  present  claimant,  thereby  imposing  upon  the  oflSce  the  burden 
of  inquiring  into  the  derivative  title  presented  b}-  the  applicant. 
This  difficulty,  also,  existed  in  respect  to  the  boards  of  commis- 
sioners under  tlie  acts  of  Congress  for  the  settlement  of  French 
and  Spanish  claims.  The  result  seems  to  have  been,  after  con- 
sulting the  Attorne}-  General,  that  the  commissioner  of  the  land 
oflfice  recommended  a  formula  that  has  since  been  very  generally 
observed,  namely,  the  issuing  of  the  patent  certificate,  and  even 
the  patent,  to  the  original  grantee,  in- his  legal  representatives,  and 
the  same  has  been  adopted  by  the  several  boards  of  commissioners. 
This  formula  "or  his  legal  representative"  embrace  representa- 
tives of  the  original  grantee  in  the  land,  b}^  contract,  such  as 
assignees  or  grantees,  as  well  as  by  operation  of  law,  and  leaves 
the  question  open  to  inquiry  in  a  court  of  justice  as  to  the 
party  to  whom  the  certificate,  patent,  or  confirmation,  sliould 
enure. 

Now,  upon  this  view  of  the  case,  we  think  the  court  below  erred 
in  ruling,  as  matter  of  law,  that  the  plaintifiT  was  not  entitled  to 
recover.  The  question  in  the  case  is,  whether  or  not  the  evidence 
produced  by  the  plaintiff  on  the  trial  before  the  jury  tended  to 
prove  that  there  had  been  an  assignment  by  the  one  of  fort}^ 
arpens  from  Conde  to  Lamonde,  prior  to  his  notice  of  the  claim 
before  the  lioard  of  commissioners  in  1808?  If  it  did.  then  it 
should  have  been  submitted  to  the  jur}^  as  a  question  of  fact,  and 
not  of  law.     The  transaction  was  ancient,  and  of  course  it  could 


758  Gibson  v.  Chouteau. 

not  be  expected  that  the  evidence  wonld  be  as  full  and  specific  as 
if  it  had  occurred  at  a  more  recent  period. 

The  piece  of  land  is  but  a  moiety  of  the  original  concession  to 
Conde  ;  and  it  appears  that  previous  to  the  change  of  govern- 
ment, and  while  Conde  was  living,  Lamonde  and  his  family  were 
in  possession  cultivating  the  strip,  in  the  usual  way  in  which  these 
common  field  lots  were  occupied  and  improved.  And  very  soon 
after  the  establishment  of  a  board  at  the  town  of  St.  Louis,  for  the 
purpose  of  hearing  and  settling  these  French  and  Spanish  imper- 
fect grants,  we  find  him  presenting  this  claim  before  the  board, 
setting  up  a  right  to  it  as  his  own,  and  asking  for  a  confirmation  ; 
and  in  the  proceedings  of  confirmation,  the  board  speak  of  it  as  a 
claim  by  Lamonde,  assignee  of  Conde. 

The  title  did  not  become  absolute  in  the  conjirme,  whoever  that 
person  might  be,  till  the  passage  of  the  act  of  1814  ;  and  in  1825, 
Lamonde,  for  he  appears  to  have  been  then  alive,  procured  from 
the  recorder  of  land  titles  the  certificate  of  confirmation. 

We  are  of  opinion  that  these  facts  should  have  been  submitted 
to  the  jury,  for  them  to  find  whether  or  not  there  had  been  an 
assignment  or  transfer  of  interest  in  this  strip  of  one  by  forty 
arpens  from  Conde  to  Lamonde.  Especially  do  we  think  that 
the  question  should  thus  have  been  submitted,  as  it  appears 
that  at  this  earl)^  day  and  among  these  simple  people,  a  parol 
transfer  of  this  interest  was  as  effectual  as  if  it  had  been  in 
writing. 

Judgment  reversed  icith  costs,  and  cause  remanded  u-ith  direc- 
tions to  issue  new  venire. 


Gibson  v.  CHOUTEAr. 
December  Term.  1871.-13  Wallace,  92. 

1 .  Statutes  of  limitation  of  a  State  do  not  api^ly  to  the  State  itself,  unless 

it  i>"  expressly  designated,  or  the  mischiefs  to  be  remedied  are  of 
such  a  nature  that  it  must  necessarily  be  included  ;  and  they  do  not 
apph'  to  tlie  United  States. 

2.  The  power  of  ( 'ougress  in  the  disposal  of  the  public  domain  cannot  be 

interfered  -with,  or  its  exercise  embarrasssed  by  any  State  legisla- 
tion ;  nor  can  such  legislation  deprive;  the  grantees  of  the  United 
States  of  the  possession  and  enjoyment  of  the  property  granted  by 
reason  of  any  delay  in  the  transfer  of  the  title  after  the  initiation  of 
proceedings  for  its  acquisition. 


Gibson  v.  Chouteau.  759 

3.  The  patent   is   the  instrument  wliich,  under  the  laws  of  Congress, 

passes  the  title  of  the  Tnited  States,  and  in  the  action  of  ejectment 
in  the  Federal  courts  for  lands  derived  from  the  United  States  the 
patent,  when  rej>ular  on  its  face,  is  conclusive  evidence  of  title  in  !  he 
patentee.  And  in  the  action  of  ejectment  in  the  State  courts  when 
the  question  presented  is  whether  the  plaintiff"  or  the  defendant  has 
tlie  superior  legal  title  fr.^m  the  United  States,  the  patent  is  also 
conclusive. 

4.  The  occupation  of   lands  derived  from  the  I'nited  States,  before  the 

issue  of  their  patent,  for  the  period  prescribed  by  the  statutes  of 
limitation  of  a  State  for  the  commencement  of  actions  for  the  recov- 
ery of  real  property,  is  not  a  bar  to  an  action  of  ejectment  for  the 
possession  of  such  lands  founded  upon  the  legal  title  subsequently 
conveyed  by  the  patent.  Nor  does  such  occupation  constitute  a 
sufficient  e(iuity  in  favor  of  the  occupant  to  control  the  legal  title 
thus  subsequently  conveyed,  wiiether  asserted  in  a  separate  suit  in  a 
federal  court,  or  set  up  as  an  equitable  defence  to  an  action  of  eject- 
ment in  a  state  court. 

5.  'I'he  doctrine  of  relation  is  a  fiction  of  law  adopted  by  the  courts  solely 

for  the  purposes  of  justice,  and,  where  several  proceedings  are 
required  to  perfect  a  conveyance  of  land,  it  is  only  applied  for  the 
security  and  protection  of  persons  who  stand  in  some  privity  with 
the  party  that  initiated  the  proceedings  and  acquired  the  equitable 
claim  or  right  to  the  title.  It  does  not  affect  strangers  not  connect- 
ing themselves  with  the  equitable  claim  or  riglit  by  any  valid  trans- 
fer from  the  original  or  any  subsequent  holder. 

Errok  to  the  Supreme  Court  of  the  State  of  jNIissouri. 

Gibson  brought  ejectment  in  the  St.  Louis  Land  Court  against 
Chouteait,  to  recover  sixtj^-four  acres  of  Land  in  the  county  of 
St.  Louis,  Missouri.  Bj^  consent  of  parties  the  case  was  tried  by 
the  court  without  a  jury.  On  the  trial  the  pLaintiff  claimed  title 
to  the  demanded  premises  under  a  patent  of  the  United  States 
issued  to  his  immediate  grantor,  which  he  produced.  The  facts 
which  led  to  the  issue  of  the  patent. were  these  : 

As  early  as  September,  1803,  as  appeared  from  the  record,  one 
James  Y.  O'Carroll  obtained  permission  from  the  Spanish  authori- 
ties to  settle  on  vacant  lands  in  the  District  of  New  Madrid,  in 
the  Territory  of  Louisiana.  In  pursuance  of  this  permission  he 
occupied  and  cultivated,  previously  to  December  20th.  of  that 
year,  portions  of  a  tract  embracing  one  thousand  arpens  of  land, 
in  that  part  of  the  country  which  afterwards  constituted  the  county 
of  New  Madrid  in  the  Territory  of  :\Iissouri.  After  the  cession 
of  Louisiana  to  the  United  States,  he  claimed  the  land  by  virtue 
of  his  settlement :  and  this  claim  was  subsequently  confirmed  to 


760  Gibson  v.  Chouteau. 

him  and  his  legal  representatives,  under  different  acts  of  Congress, 
to  the  extent  of  six  hundred  and  fortj^  acres. 

In  1812  a  large  part  of  the  land  in  the  county  of  New  Madrid 
was  injured  by  earthquakes,  and  in  1815  Congress  passed  an  act 
for  the  relief  of  parties  who  had  thus  sufiered.  (3  Stat,  at  Large, 
211.)  By  this  act,  persons  whose  lands  had  been  materially  injured 
were  authorized  to  locate  a  like  quantity  of  land  on  any  of  the 
public  lands  in  the  Territory  of  Missouri,  the  sale  of  which  was 
authorized  by  law  :  and  it  was  made  the  duty  of  the  recorder  of 
land  titles  in  the  territor}' ,  Avhen  it  appeared  to  him  from  the  oath 
or  affirmation  of  a  competent  witness  or  witnesses,  that  any  person 
was  entitled  to  a  tract  of  land  under  the  provisions  of  the  act,  to 
issue  to  him  a  certificate  to  that  effect.  On  this  certificate,  upon 
the  application  of  the  claimant,  a  location  was  to  be  made  bj^  the 
principal  deputy  survej'or  of  the  territorj^  who  was  required  to 
cause  the  location  to  be  surveyed,  and  a  plat  of  the  same  to  be 
returned  to  the  recorder  with  a  notice  designating  the  tract  located, 
and  the  name  of  the  claimant. 

The  act  further  provided  for  a  report  to  be  forwarded  b}^  the 
recorder  to  the  Commissioner  of  the  General  Land  Office  of  the 
claims  allowed  and  locations  made  ;  and  for  the  delivery  to  each 
claimant  of  a  certificate  of  his  claim  and  location,  which  should 
entitle  him.  on  its  being  transmitted  to  the  commissioner,  "to  a 
patent  to  be  issued  in  like  manner  as  is  provided  by  law  for  other 
public  lands  of  the  United  States."  The  act  also  declared  that 
in  all  cases  where  the  location  was  made  under  its  provisions,  the 
title  of  the  claimant  to  the  injured  land  should  revert  to  and  vest 
in  the  United  States. 

The  land  claimed  by  O'Carroll.  in  New  Madrid  county,  after- 
wards confirmed  to  him,  as  alreadj'  stated,  to  the  extent  of  six 
hundred  and  forty  acres,  was  injured  by  earthquakes,  and  in 
November,  1815,  the  recorder  of  land  titles  in  St.  Louis,  upon 
proper  proof  of  the  fact,  gave  a  certificate  to  that  effect,  and  stating 
that  under  the  act  of  Congress  O'Carroll,  or  his  legal  representa- 
tives, were  entitled  to  locate  a  like  quantity  on  anj^  of  the  public 
lands  of  the  Territory  of  Missouri,  the  sale  of  which  was  aiithorized 
by  law. 

In  June,  1818,  a  location  of  the  land  was  made  on  behalf  of 
one  Christian  Wilt,  who  had  become  by  mesne  conveyances  the- 
owner  of  the  interest  of  O'Carroll.  The  land  thus  located  had 
been  previously  surveyed  by  the  deputy  surveyor  of  the  territory, 


Gibson  v.  Chouteau.  761 

but  from  some  unexplained  cause  the  survey  and  plat  thereof 
were  not  returned  to  the  recorder  until  August,  1841 .  The  recorder 
then  issued  a  patent  certificate  to  ••James  Y.  O'Carroll  or  his  legal 
representatives."  A  report  of  the  location  was  also  made  by  him, 
as  required  by  the  act  of  Congress,  to  the  Commissioner  of  the 
General  Land  Otlice,  but  it  appeared  that  the  survey  of  the  loca- 
tion did  not  meet  the  ai)proval  of  that  officer,  as  it  did  not  show 
its  interferences  with  conflicting  claims.  Accordingly,  in  a  com- 
munication dated  in  March.  1847.  the  commissioner  required  the 
surveyor  general  of  Missouri  to  examine  into  the  interferences, 
and  ascertain  the  residue  of  the  O'Carroll  claim,  and  stated  that 
on  the  return  to  the  land  office  "of  a  proper  plat  and  patent 
certificate  for  said  residue,  a  patent "  would  issue.  Under  these 
instructions  a  new  survey  and  plat  were  made,  showing  the  inter- 
ferences of  the  survey  with  other  claims,  and  on  the  26th  of  March^ 
1862,  were  filed  with  the  recorder,  and  a  new  patent  certificate  was 
issued.  Upon  the  corrected  survey  and  plat  and  new  certificate,  the 
patent  of  the  United  States  was,  in  June,  1862,  issued  to  Mary 
McRee,  who  had  acquired  by  various  mesne  conveyances  the 
interest  of  Wilt  in  the  land.  In  August  following  she  conveyed 
to  the  plaintitf. 

On  the  trial  the  defendants  endeavored  to  show  that  they  had 
become,  through  certain  legal  proceedings,  the  owners  of  the 
interest  originally  possessed  by  Wilt,  and  consequently  had 
acquired  the  equitable  title  to  the  land  upon  which  they  could 
defend  against  the  patent,  under  the  practice  which  prevails  in 
Missouri.  But  in  this  endeavor  they  failed,  the  Supreme  Court 
of  the  State  holding  that  the  conveyances  under  which  they  claimed 
were  inoperative  and  void. 

The  defendants  also  relied  upon  a  deed  of  Samuel  McRee  and 
wife,  (the  Mary  McRee  already  named),  executed  in  1838,  conten- 
ding that  by  operation  of  the  deed  under  the  statutes  of  Missouri, 
the  equitable  title  which  these  grantors  had  subsequently  acquired 
to  the  land  and  also  the  legal  title  conveyed  by  the  patent  to  INIrs. 
McRee,  enured  to  the  benefit  of  the  defendants  ;  but  the  supreme 
court  held  that  the  deed  only  had  the  effect  of  a  quit-claim  of  an 
existing  interest,  and  did  not  affect  any  subsequently  acquired 
title. 

The  rulings  of  the  State  court  upon  these  grounds  were  not 
open  to  review  in  this  court,  as  they  involved  no  questions  of  fed- 
eral jurisdiction.     But  it   also  appeared    in   evidence   that   the 


762  Gibson  ?;.  Chouteau. 

defendants,  previous  to  the  issue  of  the  patent,  had  been  in  the 
possession  of  the  demanded  premises  more  thaii  ten  years, 
the  period  prescribed  by  the  statute  of  Missouri,  within  which 
actions  for  the  recovery  of  real  property  must  be  brought.  By 
the  statutes  of  the  State  the  action  of  ejectment  will  lie  on  certain 
equitable  titles.  It  may  be  maintained  on  a  New  Madrid  loca- 
tion against  any  person  not  having  a  better  title.  (General 
Statutes  of  Missouri  of  1825.  chap.  151,  sections  1  and  11.)  The 
defendants,  therefore,  contended  that  the  statute  of  limitation, 
which  had  run  against  the  equitable  title,  created  by  the  location 
of  the  O' Carroll  claim,  was  also  a  bar  to  the  present  action  founded 
upon  the  legal  title,  acquired  by  the  patent  of  the  United  States. 

The  land  court  held  that  the  effect  of  the  patent  issued  by  the 
United  States  to  Mrs.  McRee  was  to  invest  her  with  the  legal  title 
to  the  land  in  dispute  ;  and  that  the  title  vested  in  the  plaintiff 
through  the  deed  to  him  from  Mrs.  McRee  was  superior  to  anj'  title 
shown  by  the  defendants  to  'the  land  in  question  under  the  New 
Madrid  certificate  of  location,  and  that  the  said  patent  having 
issued  to  Mrs.  McRee  within  ten  years  next  before  the  commence- 
ment of  this  suit,  the  possession  of  the  defendants  was  not  a  bar 
to  the  plaintiff's  recovery,  and  gave  verdict  and  judgment  accord- 
ingly for  the  plaintiff.  From  the  judgment  the  case  was  taken  to 
the  Supreme  Court  of  the  State,  and  was  twice  heard  there.  Upon 
the  first  hearing  the  court  affirmed  the  decision  of  the  inferior 
court,  holding  that  "  until  the  patent  issued  the  legal  title  remained 
in  the  United  States,  and  the  statute  of  limitations  did  not  begin 
to  run  against  the  plaintiff  before  the  date,  of  that  patent." 

On  the  second  hearing,  the  court  adhered  to  all  its  previous 
rulings,  except  that  which  related  to  the  effect  of  the  statute  of 
limitations,  and  upon  that  it  changed  its  previous  ruling  and  held 
that  the  statute  barred  the  right  of  action  upon  the  patent.  In 
its  opinion  given  on  the  second  decision,  after  referring  to  its 
previous  conclusion,  cited  above,  it  saj's  : 

••This  conclusion  proceeded  upon  the  ground  that,  although  the 
action  given  by  the  statute  upon  the  equitable  right  only,  which 
had  passed  out  of  the  United  States,  might  be  barred,  it  did  not 
follow  that  an  action  based  upon  the  right  of  entry  by  virtue  of 
the  absolute  legal  title  by  patent,  would  also  be  barred.  The  idea 
that  the  fiction  of  relation  could  be  applied  not  only  to  carrj^  the 
legal  title  to  the  owner  of  the  inceptive  right  through  the  inter- 
mediate   conveyances,    but    also   for  the  purpose  of  bringing  it 


Gibson  v.  Chouteau.  763 

witliin  tlie  operation  of  the  statute  of  limitations  from  the  date  of 
tlie  inceptive  equity,  had  not  been  suggested,  and  had  not  occurred 
to  us." 

Again,  the  court,  after  recognizing  the  fact  that  the  legal  title 
remained  in  the  United  States  till  the  patent  issued,  and  that  the 
location  onlj^  gave  an  equitable  right,  upon  whicli  an  action  was 
sustainable  in  the  State  courts,  by  virtue  of  the  State  statute, 
said  : 

••The  two  rights  of  entry,  therefore,  are  distinct  in  themselves, 
and  the  causes  of  action  have  a  different  foundation.  The  pos- 
session of  the  land  is  claimed  in  both,  but  by  ditferent  rights, 
and  if  there  were  nothing  more,  the  one  cause  of  action  might  be 
barred,  and  not  the  other.  But  there  is  another  principle  upon 
which  we  think  the  statute  may  be  made  to  operate  here  as  a  bar 
to  the  plaintiff's  action,  and  that  is  the  fiction  of  relation  whereby  . 
the  legal  title  is  to  be  considered  as  passing  out  of  the  United 
States  through  the  patent  at  its  date,  but  as  instantly  dropping 
back  in  time  to  the  date  of  the  location  as  the  first  act  or  incep- 
tion of  the  conveyance,  to  vest  the  title  in  the  owner  of  the  equity 
as  of  that  date,  and  make  it  pass  irom  him  to  the  patentee  named, 
through  all  the  intermediate  conveyances,  and  so  that  the  two 
rights  of  entry  and  the  two  causes  of  action  are  thus  merged  in 
one.  and  the  statute  may  be  held  to  have  operated  on  both  at 
once.  The  legal  title,  on  making  this  circuit,  necessarily  runs 
around  the  period  of  the  statute  bar,  and  the  action  founded  on 
this  new  right  is  met  by  the  statute  on  its  way  and  cut  off  with 
which  existed  before." 

The  Supreme  Court  accordingly  reversed  the  decision  of  the 
land  court,  and  the  case  was  brought  here  on  writ  of  error,  under 
the  25th  section  of  the  Judiciary  Act.  and  is  reported  in  Gibson 
V.  Chouteau  (8th  Wallace,  314.)  When  presented,  the  record  dis- 
closed questions  respecting  the  validity  of  Mrs.  ISIcEee's  title, 
the  transfer  of  her  title  to  the  plaintiff,  and  the  trust  asserted  by 
which  it  was  contended  that  the  plaintiffs  title  enured  to  the  ben- 
efit of  the  defendants,  as  well  as  the  statute  of  limitations.  This 
court,  therefore,  as  the  report  already  mentioned  shows,  dismissed 
the  writ  of.  error,  because  the  record  did  not  show  that  the  deci- 
sion of  the  State  court  turned  on  the  question  of  the  statute  of 
limitations,  or  that  the  determination  of  this  question  against 
the  plaintiff  was  essential  to  the  second  judgment  rendered. 

When  the  case  went  back  to  the  Supreme  Court  of  the   State, 


764  Gibson  v.  Chouteau. 

tliat  court  set  aside  its  judgment,  stating  tliat  it  had  been  ren- 
dered on  the  question  of  the  statute  of  limitations  ;  but  that,  by 
a  clerical  error,  such  fact  was  not  stated  therein. 

The  case  was  then  again  submitted  to  that  court,  and  the  court 
then  adjudged  that  the  plaintiff  was  barred  by  the  statute  of  lim- 
itations, all  other  questions  being  determined  in  his  favor.  It 
was  this  judgment  which  was  now  brought  before  this  court  on 
writ  of  error. 

Messrs.  Montgomery  Blair  nad  F.  A.Dick  for  the  plaintifl'in  error. 

Messrs.  GJorer  and  Shepley  contra. 

Mr.  Justice  P'ield  delivered  the  opinion  of  the  court. 

It  is  matter  of  common  knowledge  that  statutes  of  limitation 
do  not  run  against  the  State.  That  no  laches  can  be  imputed  to 
the  king,  and  that  no  time  can  bar  his  rights,  was  the  maxim  of 
the  common  law.  and  was  founded  on  the  principle  of  pu.blic  pol- 
icy ;  that,  as  he  was  occupied  with  the  cares  of  government,  he 
ought  not  to  suffer  from  the  negligence  of  his  officers  and  ser- 
vants. The  principle  is  applicable  to  all  governments,  which 
must  necessarily  act  through  numerous  agents,  and  is  essential 
to  a  preservation  of  the  interests  and  property  of  the  public.  It 
is  upon  this  principle  that  in  this  country  the  statutes  of  a  State 
prescribing  periods  within  which  rights  must  be  prosecuted  are 
not  held  to  embrace  the  State  itself,  unless  it  is  expressly  desig- 
nated, or  the  mischiefs  to  be  remedied  are  of  such  a  nature  that 
it  must  necessarily  be  included.  As  legislation  of  a  State  can 
onl}^  ''ippl}'  to  persons  and  things  over  which  the  State  has  juris- 
diction, the  United  States  are  also  necessarily  excluded  from  the 
operation  of  such  statutes.  {United  States  v.  Hoar,  2  Mason,  312  ; 
People  V.  Gilbert.  18  Johnson,  228.) 

With  respect  to  the  public  domain,  the  constitution  vests  in 
Congress  the  power  of  disposition,  and  of  making  all  needful 
rules  and  regulations.  That  power  is  subject  to  no  limitations. 
Congress  has  the  absolute  right  to  prescribe  the  times,  the  con- 
ditions, and  the  mode  of  transferring  this  property,  or  any  part  of 
it,  and  to  designate  the  persons  to  whom  the  transfer  shall  be 
made.  No.  State  legislation  can  interfere  with  this  right,  or 
embarrass  its  exercise :  and  to  prevent  the  possibility  of  any 
attempted  interference  with  it,  a  provision  has  been  usually 
inserted  in  the  compacts  by  which  new  States  have  been  admitted 
into  the  Union,  that  such  interference  with  the  primary  disposal 


Gibson  v.  Chouteau.  765 

of  the  soil  of  the  United  States  shall  never  be  made.  Such  pro- 
vision was  inserted  in  the  act  admitting  Missouri,  and  it  is 
embodied  in  the  present  constitution,  with  the  further  clause  that 
the  legislature  shall  also  not  interfere  •'  with  any  regulation  that 
Congress  may  find  necessary  for  securing  the  title  in  such  soil  to 
the  bona  fide  purchasers." 

The  same  principle  which  forbids  any  State  legislation  inter- 
fering with  the  power  of  Congress  to  dispose  of  tlie  pul)lic  prop- 
erty of  the  United  States,  also  forbids  any  legislation  depriving 
the  grantees  of  the  United  States  of  the  possession  and  enjoy- 
ment of  the  property  granted  l)y  reason  of  any  delay  in  the  trans- 
fer of  the  title  after  the  initiation  of  proceedings  for  its  acquisi- 
tion. The  consummation  of  the  title  is  not  a  matter  which  the 
grantees  can  control,  but  one  which  rests  entirely  with  the  gov- 
ernment. With  the  legal  title,  when  ti'ansferred.  goes  the  right  to' 
posses  and  enjoy  the  land,  and  it  would  amount  to  a  denial  of 
the  power  of  disposal  in  Congress  if  these  benefits,  which  should 
follow  upon  the  acquisition  of  that  title,  could  be  forfeited  because 
they  were  not  asserted  before  that  title  was  issued. 

Yet  such  forfeiture  is  claimed  by  the  defendants  in  this  case, 
and  is  sanctioned  by  the  decision  of  the  Supreme  Court  of  Mis- 
souri. That  court  does  not.  it  is  true,  present  its  decision  in  this 
light,  but,  on  the  contrary,  it  attempts  to  reconcile  its  decision 
with  positions  substantially  such  as  we  have  alreadj^  stated, 
respecting  the  power  of  Congress  over  the  public  lands,  and  the 
inability  of  the  State  to  interfere  with  the  primary  disposal  of  the 
soil  of  the  United  States.  It  declares  it  to  be  well  settled,  that 
statutes  of  limitation  of  a  State  cannot  run  against  the  United 
States,  nor  affect  their  grantees,  until  the  title  has  passed  from 
the  proprietary  sovereigntj^ ;  that  these  statutes  operate  to  bar 
the  cause  of  action,  not  to  convey  the  title  ;  that  no  cause  of 
action  upon  a  right  of  entry  by  virtue  of  the  legal  title  by  patent 
can  exist  until  the  patent  is  issued ;  and  that  the  action  upon  the 
equitable  title  created  b}^  the  location,  is  only  given  b}"  a  statute 
of  the  State  ;  and  as  the  two  rights  of  entry  have  a  different 
origin,  that  the  latter,  resting  on  the  statute,  might  be  barred, 
whilst  that  resting  on  the  patent  would  continue  in  force,  but  for 
the  operation  of  the  fiction  of  relation.  By  a  novel  application 
of  that  doctrine,  the  court  comes  to  the  conclusion  that  the  statute 
operates  against  both  rights  of  entry  at  the  same  time. 

By  the  doctrine  of  relation  is  meant  that  princii)le  b}'  which  an. 


766  Gibson  v.  Chouteau. 

act  done  at  one  time  is  considered  by  a  fiction  of  law  to  have 
been  done  at  some  antecedent  period.  It  is  nsnally  applied  where 
several  proceedinos  are  essential  to  complete  a  particular  trans- 
action, such  as  a  conveyance  or  deed.  The  last  proceeding  which 
consummates  the  conveyance  is  held  for  certain  purposes  to  take 
effect  by  relation  as  of  the  day  when  the  first  proceeding  was  had. 
Thus,  in  the  present  case,  the  patent,  which  was  issued  in  1862^ 
is  said  to  take  effect  by  relation  at  the  time  when  the  survey  and 
plat  of  the  location,  made  in  1818,  were  returned  to  the  recorder 
of  land  titles  under  the  act  of  Congress.  At  that  time  the  title 
of  the  claimant  to  the  land  desired  by  him  had  its  inception,  and 
so  far  as  it  is  necessary  to  protect  his  rights  to  the  land,  and  the 
rights  of  parties  deriving  their  interests  from  him.  the  patent  is 
held  to  take  effect  by  relation  as  of  that  date.  {Lessieur  v.  Price, 
12  Howard,  74.) 

The  Supreme  Court  of  Missouri,  considering  that  by  this  doc- 
trine of  relation,  the  legal  title,  when  it  passed  out  of  the  United 
States  by  the  patent,  instantly  dropped  back  in  time  to  the  loca- 
tion of  the  first  act  or  inception  of  the  conveyance,  and  vested 
the  title  in  the  owner  of  the  equity  as  of  that  date,  held  that  the 
statute  intercepted  the  title  as  it  passed  through  the  intermediate 
conveyances  from  that  period  to  the  patentee.  "  The  legal  title," 
said  the  court.  •'  in  making  this  circuit,  necessarily  runs  around  the 
period  of  the  statute  bar,  and  the  action  founded  upon  this  new 
right  is  met  by  the  statute  on  its  way,  and  cut  off  with  that  which 
existed  before."     {Gibson  v.  Chouteau's  Heirs,  39  Missouri,  588.) 

The  error  of  the  learned  court  consisted  in  overlooking  the  fact 
that  the  doctrine  of  relation  is  a  fiction  of  law  adopted  by  the 
courts  solely  for  the  purposes  of  justice,  and  is  only  applied  for 
the  security  and  protection  of  persons  who  stand  in  some  privity 
with  the  party  that  initiated  proceedings  for  the  land,  and  acquired 
the  equitable  claim  or  right  to  the  title.  {Lyncli  v.  Bernal,  9  Wal- 
lace, 315  ;  Jackson  v.  Bard  4  Johnson,  230  ;  Heathy.  Ross,  12  Id, 
140  ;  Littleton  v.  Cross,  o  Barnewall  and  Cresswell,  325,  328.)  The 
defendants  in  this  case  were  strangers  to  that  party  and  to  his  equi- 
table claim,  or  equitable  title,  as  it  is  termed,  not  connecting  them, 
selves  with-it  by  any  valid  transfer  from  the  original  or  any  sub- 
sequent holder.  The  statute  of  limitations  of  Missouri  did  not 
operate  to  convey  that  claim  or  equitable  title  to  them.  It  only 
extinguished  the  right  to  maintain  the  action  of  ejectment  founded 
thereon,  under  the  practice  of  the  State.     It  left  the  right  of  entry 


Gibson  v.  Chouteau.  767 

upon  the  legal  title  subsequently  acquired  by  the  patent  wholly 
unaftected. 

In  the  federal  courts,  where  the  distinction  between  legal  and 
equitable  proceedings  is  strictly  maintained,  and  remedies  afforded 
by  law  and  equity  are  separately  pursued,  the  action  of  ejectment 
can  onl};-  be  sustained  upon  the  possession  by  the  plaintiff  of  the 
legal  title.  For  the  enforcement  of  equitable  rights,  however 
clear,  distinct  equitable  proceedings  must  be  instituted.  The 
patent  is  the  instrument  which,  under  the  laws  of  Congress,  passes 
the  title  of  the  United  States.  It  is  the  government  convej'ance. 
If  other  parties  possess  equities  superior  to  those  of  the  patentee, 
upon  which  the  patent  issued,  a  court  of  equit}'  will,  upon  proper 
proceedings,  enforce  such  equities  by  compelling  a  transfer  of  the 
legal  title,  or  enjoining  its  enforcement,  or  cancelling  the  patent. 
{Stephenson  v.  Smith,  7  Missouri,  610;  Barry  v.  Gamble,  8  Id.; 
881  ;  Cunningham,  v.  Ashley,  14  Howard,  377  ;  Lindsey  v.  Halves, 
2  Black,  .554 ;  Stark  v.  Starrs,  6  Wallace,  402  ;  Johnson  v.  Toto- 
sley,  supra.)  But,  in  the  action  of  ejectment  in  the  federal 
courts,  the  legal  title  must  prevail,  and  the  patent,  when  regular 
on  its  face,  is  conclusive  evidence  of  that  title. 

So  also  in  the  action  of  ejectment  in  the  State  courts,  when  the 
question  presented  is  whether  the  plaintiff  or  the  defendant  has 
the  superior  legal  title  from  the  United  States,  the  patent  must 
prevail.  For,  as  said  in  Bagnell  v.  BrodericJc,  13  Peters,  450, 
•'  Congress  has  the  sole  power  to  declare  the  dignity  and  effect  of 
titles  emanating  from  the  United  States  ;  and  the  whole  legisla- 
tion of  the  federal  government  in  reference  to  the  public  lands 
declares  the  patent  the  superior  and  conclusive  evidence  of  legal 
title.  Until  its  issuance  the  fee  is  in  the  government,  which,  by 
the  patent,  passes  to  the  grantee,  and  he  is  entitled  to  recover  the 
possession  in  ejectment." 

In  several  of  the  States,  and  such  is  the  case  in  Missouri,  equi- 
ties of  the  character  mentioned,  instead  of  being  presented  in  a 
separate  suit,  may  be  set  up  as  a  defence  to  the  action  of  ejectment. 
The  answer  or  plea  in  such  case  is  in  the  nature  of  a  bill  in  equity, 
and  should  contain  all  its  essential  averments.  The  defendant 
then  becomes,  with  reference  to  the  matters  averred  by  him,  an 
actor,  and  seeks,  by  the  equities  presented,  to  estop  the  plaintiff 
from  prosecuting  the  action,  or  to  compel  a  transfer  of  tiie  title. 
{Estrada  v.  Murphy,  I'J^  California,  272  ;  Weber  v.  Marshall,  lb., 
457  ;  Lestrude  v.  Barth,  lb.,  671.) 


768  Gibson  v.  Chouteau. 

In  Maguire  v.  Vice,  20  Missouri.  431,  where  the  plaintiff  brought 
ejectment  on  a  legal  title,  and  gave  in  evidence  a  patent  of  the 
United  States,  and  the  defendant  relied  upon  an  equitable  defence, 
the  Supreme  Court  of  Missouri  said  :  "  Although  our  present  prac- 
tice act  abolishes  all  distinctions  between  legal  and  equitable 
actions,  yet  a  party  who  seeks  relief  on  a  merely  equitable  title 
against  a  legal  title  must,  in  his'  pleadings,  whether  he  is  plaintiff 
or  defendant,  set  forth  such  a  state  of  facts  as  would  have  entitled 
him  to  the  relief  he  seeks  under  the  old  form  of  proceedings. 
When  a  partj^  by  his  ^)leadings  sets  forth  a  merely  legal  title,  he 
cannot  on  the  trial  be  let  into  the  proof  of  facts  which  show  that, 
having  an  equity,  he  is  entitled  to  a  conveyance  of  the  legal  title. 
If  he  wants  such  relief  he  must  prepare  his  pleadings  with  an 
eye  to  obtain  it,  and  this  must  be  done,  whether  he  is  seeking 
relief  as  plaintiff  or  defendant." 

But  neither  in  a  separate  suit  in  a  federal  court,  nor'  in  an 
answer  to  an  action  of  ejectment  in  a  State  court,  can  the  mere 
occupation  of  the  demanded  premises  by  plaintiffs  or  defendants, 
for  the  period  prescribed  by  the  statute  of  limitations  of  the  State, 
be  held  to  constitute  a  sufficient  equity  in  their  favor  to  control 
the  legal  title  subsequently  conveyed  to  others  by  the  patent  of 
the  United  States,  without  trenching  upon  the  power  of  Congress 
in  the  disposition  of  the  public  lands.  That  power  cannot  be 
defeated  or  obstructed  by  any  occupation  of  the  premises  before 
the  issue  of  the  patent,  under  State  legislation,  in  whatever  form 
or  tribunal  such  occupation  be  asserted.  ( Wilcox  v.  Jackson,  1-3 
Peters,  516,  517  ;  Irvine  v.  Marshall,  20  Howard,  558  ;  Fenu  v. 
Holme,  21  Id.,  481 ;  Lindsey  v.  Miller,  6  Peters,  672.) 

Judgment  reversed,  and  the  cause  remanded  for  further  pro- 
ceedings pursuant  to  this  opinion. 

Justices  Davis  and  Strong  dissented. 


Note.  — 'I'he  statute  of  Umitation  of  <  'alifornia  does  not  begin  to  run 
against  the  owuer  of  a  confirmed  Mexican  grant,  until  the  patent  has 
been  issued.  Le  Roy  v.  Carroll,  3  Sawyer,  66  ;  Gardiner  v.  Milli-r,  47 
Cal.,  .')70;   Galindo  v.  Whitenrneyer,  49  Cal.,  12. 

The  time  under  the  statute  begins  to  run  from  tlie  time  the  person 
has  a  title  upon  which  lie  can  maintain  an  action  of  ejectment.  BryauY. 
Forsyth,  19  How.,  3:^4  ;  Dillingham  v.  Broivn,  38  Ala.,  311  ;  also  see. 
Dredge  v.  Forsyth.,  2  Black,  .563  ;  and  Lindsey  v.  Miller,  6  Pet.,  666. 

Holding  possession  under  a  tax  deed,  valid  on  its  face,  and  the  pay- 


Header  v.  Norton.  769 

ment  of  taxes  on  the  laiul.  cannot  lielp  the  statute,  if  the  land  had  not 
been  sold  by  the  United  States.     Thompson  v.  Prince,  67  111.,  281. 

A  prescriptive  rioht  of  overflowing  the  public  lands,  or  divertino-  the 
use  of  water,  cannot  be  acquired  so  long  as  the  title  is  in  the  United 
States,  h' II ion  M.  and  M.  Co.  v.  Feiris,  2  Sawyer,  17G  ;  Wi/kinn  v.  Mi: Cue, 
46Cal..  ().")(!  ;    Wilcoxon  v.  McGehce.  Yl  111.,  ;iSl. 


Header  et  al.  v.  Norton. 
December  Term,  1870.-11  Wallace,  -442. 

1 .  Nothino-  more  is  contemi^lated  by  proceedings  under  the  act  of  Con- 

gress of  March  3d,  18.51,  to  ascertain  and  settle  private  land  claims 
in  California,  than  the  separation  of  lands  owned  by  individuals, 
from  the  public  domain.  A  decree  confirming  a  claim  to  land  ren- 
dered in  such  proceedings,  even  when  followed  bj-  a  patent  of  the 
United  States,  is  not  conclusive  upon  the  equitable  rights  of  third 
persons,  'i  hey  can  assert  such  rights  in  a  suit  in  equity  against  the 
patentee  and  parties  claiming  under  him,  with  notice. 

2.  In  a  suit  at  law,  a  patent  is  conclusive  evidence  of  title  against  the 

United  States,  and  all  others  claiming  under  the  United  States,  by  a 
junior  title.  Until  the  patent  issues,  the  fee  is  in  the  government ; 
but.  when  it  issues,  the  legal  title  passes  to  the  patentee.  I'ersons, 
therefore,  claiming  the  land  against  the  patent,  cannot  have  relief 
hi  a  suit  at  law,  but  courts  of  equity  have  full  jurisdiction  to  relieve 
against  fraud  or  mistake,  and  that  power  extends  to  cases  whei-e  one 
man  has  procured  the  patent  which  belonged  to  another,  at  the  time 
the  patent  was  issued. 

3.  In  1831»,  three  sisters  obtained  from  the  governor  of  the  dej)artment  of 

California,  a  grant  of  land,  which  was  approved  by  the  depart- 
mental assembly,  and  ofiicial  delivery  of  possession  was  given  to 
them.  Some  years  afterwards,  the  husband  of  one  of  the  sisters, 
nan)ed  Holcoft',  suppre-sed  or  destroyed  their  grant,  and  fabricated  a 
pretended  grant  to  himself,  of  the  land,  and  also  certain  otlier  papers 
intended  to  prove  the  genuineness  of  .such  fabricated  grant.  I'pon 
these  papers,  the  sons  of  IjolcotF,  he  having  died,  obtained  a  con- 
firmation of  their  claim,  under  said  pretended  grant,  to  the  land, 
the  land  commissioners  acting  upon  the  supposition  that  the  fabri- 
cated papers  were  genuine,  no  question  as  to  their  genuineness 
being  raised  before  them ;  and  upon  such  decree,  a  patent  of  the 
United  States  issued  to  the  claimants.  The  fabricated  cliaracter  of 
these  papers  being  discovered,  the  grantee  of  the  rigiits  of  the  tln-ee 
sisters  brought  a  suit  in  eijuity  to  have  the  defendants  holding  under 
the  patentees  declared  trustees  of  the  legal  title,  and  to  compel  a 

49 


770  Meader  v.  Norton. 

transfer  of  that  title  to  him.  IMd,  that  the  suit  would  lie,  and  that 
upon  proof  of  the  fiibiicated  eliaracter  of  the  papers,  the  coniplaiu- 
ant  was  entitled  to  a  decree-  against  all  the  defendants  wlio  had  pur- 
chased with  notice  of  the  claim  of  the  sisters,  and  had  not  obtained 
conveyances  or  releases  from  them. 
4.  Laches  and  the  statute  of  limitations  cannot  prevail  as  defences, 
where  the  relief  sought  is  grounded  on  a  charge  of  secret  fraud,  and 
it  appears  that  the  suit  w^as  commenced  within  a  reasonable  time 
after  the  evidence  of  the  fraud  was  discovered. 

Appkal  from  the  Circuit  Court  for  the  District  of  California. 

This  was  a  bill  in  equity,  filed  in  the  court  below  by  C.  E. 
Norton,  to  have  the  defendants.  Meader  and  several  others, 
declared  trustees  of  certain  real  property  situated  in  the  State  of 
California,  and  to  obtain  a  decree  that  they  convey  to  him  the 
legal  title  held^by  them  to  the  premises.  The  case,  as  presented 
by  the  record,  was  thus  : 

Three  sisters,]  named  respectively  Maria  Candida,  Maria  Ja- 
ciuta,  and  Maria  Los  Angeles  Castro,  on  the  13th  of  February, 
1839,  applied  by  petition  to  J.  B.  Alvarado,  then  Mexican  gov- 
ernor of  the  department  of  California,  for  a  grant  of  the  land 
known  as  the  Kancho  El  Refugio,  situated  in  that  part  of  Cali- 
fornia now  known^as  the  county  of  Santa  Cruz. 

This  petition  was  immediately  referred  by  the  governor  to  the 
administrator  of  the  adjoining  mission,  with  directions  to  make  a 
report  upon  the  same.  On  the  10th  of  March  following,  that 
officer  reported  that  the  land  solicited  could  be  granted,  and  on 
the  16th  of  the  same  month,  the  governor  made  a  provisional  con- 
cession of  it  to  the  petitioners — a  concession  which  was  subject 
to  further  action  in  the  premises.  To  guide  him  in  such  further 
action,  the  governor  directed  the  prefect  of  the  district  to  report 
to  him  upon  the  subject. 

The  prefect  reported  that  a  grant  in  fee  of  the  land  solicited 
could  be  made  to  the  parties,  as  it  was  vacant,  and  not  claimed 
by  anyone.  Accordingly,  on  the  8th  of  April  following  (1839), 
the  governor  made  a  formal  cession  of  the  land  to  the  three  sis- 
ters by  name,  referring  to  the  previous  proceedings,  and  declaring 
them  owners  in  fee,  and  directing  that  the  proper  grant  or  title- 
papers  {titvlo)  issue  to  them,  and  that  the  proceedings  in  the  case 
be  retained  for  the  information  and  approval  of  the  departmental 
assembly.  These  proceedings  were  numbered  131.  In  the  order 
of  concession  of  the  governor,  the  name  of  one  of  the  sisters. 


Meader  v.  Norton.  771 

Maria  De  Los  Angeles,  was  erased,  and  over  the  erasure  was 
written  the  name  of  Jose  Bolcoff.  This, concession  or  grant  of 
the  governor  was  approved  by  the  departmental  assembly  on  the 
22d  of  May,  1840.  The  approval  in  the  records  of  the  assembly 
lias  in  it  the  number  181,  and  gives  the  date  of  the  concession, 
and  mentions  the  three  sisters  by  name,  as  the  parties  to  whom 
the  concession  was  made.  On  tlie  13th  of  June  following,  the 
governor  ordered  a  certificate  of  the  approval  to  be  given  to  the 
three  sisters. 

At  this  time,  one  Jose  Castro  was  prefect  of  the  first  district, 
within  which  district  the  land  granted  was  situated,  and  he  kept  a 
recoi'd  or  minute  of  the  grants  of  land  made  in  his  district.  His 
book  of  registry  is  now  in  the  archives,  in  the  custody  of  the  sur- 
veyor general  of  the  United  States  for  California. 

In  this  registry  is  entered  a  minute  that,  on  the  8th  day  of 
April,  1839,  the  governor  granted  to  the  three  sisters  the  place 
called  El  Refugio.  In  this  registrj'  there  is  also  a  similar  minute 
of  eight  other  grants,  all  of  which  are  found  in  the  archives,  and 
each  has  a  memorandum  endorsed  upon  it  that  it  has  been  entei'ed 
in  the  registry. 

The  memoranda  on  these  eight  grants  and  the  entries  in  the 
registry  correspond. 

There  is  also  in  the  archives  an  index  of  grants  made  between 
1838  and  1845,  by  a  clerk  in  the  office  of  the  secretar}"  of  state  of 
the  department,  and  under  his  direction,  which  is  commonh' 
known  as  "Jimeno's  Index."  This  index  gives  the  number  of 
the  espedientes,  the  names  of  the  grantees,  and  the  designation 
of  the  lands  granted.  Upon  the  index  against  No.  131,  is  the 
entry  of  a  grant  of  land  designated  as  El  Refugio,  and  the 
name  of  Jose  Bolcofi"  is  written  over  an  erasure.  It  was 
admitted  that  originall}"  the  names  of  the  three  sisters  were 
written  there. 

This  was  the  documentary  evidence  which  the  complainant  pro- 
duced to  show  that  a  grant  of  the  Rancho  El  Refugio  was  issued 
to  the  three  sisters,  under  whom  he  claimed  by  sundry  mesne 
conveyances. 

Parol  evidence  produced  bj^  him,  related  chieflj'  to  the  posses- 
sion of  the  premises  since  the  concession  of  the  governor,  and 
various  alleged  admissions  and  acts  of  the  sisters.  It  was  also 
in  evidence  that  in  1839  or  1840,  the  possession  of  the  land  was 
oflacially  delivered  to  the  three  sisters,  and  that,  in  this  proceed- 


772  Meader  r.  Norton. 

ing,  called  a  delivery  of  juridical  possession,  Jose  Bolcoff  appeared 
on  behalf  of  the  sisters,  and  represented  them. 

The  defendants  asserted  title  to  the  premises  through  Jose 
Bolcoff;  and  of  some  portions  of  the  premises  thej^  also  alleged 
a  conveyance  or  release  from  the  sisters. 

As  documentary  evidence  of  title  they  produced — 

First.  A  paper  purporting  to  be  a  grant  of  El  Refugio  to  Jose 
Bolcoff,  bj^  Governor  Alvarado,  bearing  date  on  the  7th  of  April, 
1841. 

It  was  shown  that  thei-e  was  no  trace  of  any  such  document  as 
this  in  the  archives  of  the  depai'tment,  except  what  appeared  over 
the  erasure  in  the  index  of  Jimeno. 

Second.  A  certificate  of  Governor  Alvarado,  dated  July  28th, 
1841,  stating  that  the  grant  made  on  the  8th  of  April,  1839,  in 
favor  of  Jose  Bolcoff,  was  approved  on  the  22d  of  May,  1841,  by 
the  departmental  assembly,  and  purporting  to  quote  the  language 
of  the  proceedings  of  that  body.  The  certificate  concluded  by 
stating  that  it  was  issued  to  the  party  interested  for  his  security, 
in  consequence  of  the  decree  of  the  13th  of  June  preceding, 
existing  in  the  espediente. 

It  is  to  be  noticed  by  the  reader  that  the  certificate  states  that 
the  grant  made  on  the  8th  of  April,  1839,  in  favor  of  Jose  Bolcoff, 
was  approved  on  the  22d  of  May.  1841,  while  the  alleged  grant 
to  Bolcoff  produced  bears  date  the  7th  of  April,  1841.  The  cer- 
tificate  purported  further  to  quote  the  language  used  by  the  depart- 
mental assembly  in  this  approval.  It  was  shown  that  there  was 
no  session  of  the  assembly  in  1841  :  at  least,  that  there  was  no 
evidence  in  the  archives  of  the  department  that  there  was  a  session 
in  that  year ;  and  if  the  year  was  erroneously  given,  and  the 
approval  of  May  22d,  1840,  was  intended,  that  related  only  to 
the  grant  to  the  three  sisters,  who  were  therein  designated  by 
name,  and  no  such  language  as  that  given  was  found  on  the  journals 
of  the  assembly. 

Third.  A  document  purporting  to  be  a  record  of  juridical  pos- 
session, given  to  Bolcoff  July,  1842. 

This  document  bears  the  signature  of  the  prefect  of  the  district 
and  two  attesting  witnesses.  It  appeared  in  evidence  that  one  of 
the  witnesses  was  unable  to  write,  and  that  the  bod}'  of  the  entire 
document  wag  in  the  handwriting  of  Bolcoff.  The  other  witness 
testified  that  he  added  his  signature  in  1851,  when  the  document 
was  presented  to  him  by  Bolcoff,  with   a  request  that  he  should 


Meader  v.  Norton.  11^ 

sign  it,  inasmuch  as  he  had  not  done  so  when  the  possession  was 
given  :  that  at  tliis  time  the  document  had  not  the  signature  of 
the  prefect  or  of  the  other  witness,  and  Bolcoff  stated  that  he  was 
going  to  them  for  their  signatures.  Both  of  these  witnesses  testi- 
fied emphaticalh'  that  there  never  was  but  one  juridical  possession 
of  the  premises,  and  that  this  was  delivered  to  the  sisters.  Bolcoff 
made  oath  before  the  land  commissioner  that  the  document  was 
signed  by  all  the  parties  in  the  year  1842. 

Fourth.  A  diseno  or  sketch  of  the  tract  El  Refugio  ;  and, 

Fifth.  A  patent  of  the  United  States,  bearing  date  on  the  4th 
of  February,  1860,  issued  to  Francisco  and  Juan  Bolcoff,  upon 
the  confirmation  of  the  alleged  grant  to  Jose  Bolcoff. 

In  1822  one  of  the  sisters,  Maria  Candida,  intermarried  with 
Jose  Bolcoff,  and  in  1839  Maria  de  Los  Angeles  intermarried  with 
one  ^Majors.  The  three  sisters  lived  together  as  members  of  the 
family  of  Bolcoff  upon  the  laud  granted  ;  Los  Angeles  until  her 
marriage,  and  Jacinto  until  1850,  when  she  became  a  nun,  and 
had  not  since  resided  upon  the  premises. 

Since  some  time  in  1850  Majors  and  his  wife  had  occupied  a 
portion  of  the  tract,  claiming  possession  under  the  concession  to 
the  sisters. 

In  1852  P'rancisco  Bolcoff  and  Juan  Bolcoff,  sons  of  Jose  Bol- 
coff, presented  a  petition  to  the  board  of  land  commissioners, 
created  under  the  act  of  Congress  of  March  3d,  1851,  to  ascertain 
and  settle  private  land  claims  in  California,  for  a  confirmation  of 
the  claim  to  El  Refugio,  asserted  by  them  under  the  alleged  grant 
to  their  father.  In  support  of  their  claim  they  relied  upon  the 
alleged  grant  of  Alvarado  of  April  7th,  1841,  his  certificate  of 
approval  by  the  departmental  assembl}^  the  record  of  juridical 
possession,  and  the  sketch,  which  are  mentioned  above,  with  parol 
evidence  of  possession  and  cultivation.  No  question  teas  raised 
l>efore  the  hoard  as  to  the  genuineness  of  these  documents,  and  in 
January,  1855,  the  claim  loas  confirmed.  An  appeal  from  the 
decision  was  dismissed,  and  on  the  4th  of  February,  1860,  a  patent 
of  the  United  States  was  issued  thereon. 

In  1852  Majors  presented,  for  himself,  and  on  behalf  of  his  wife, 
a  petition  to  the  board  for  a  confirmation  of  her  claim  to  one-tliird 
of  the  tract,  under  the  cession  to  her  and  her  sisters.  In  support 
of  the  claim  they  produced  the  petition  to  the  governor,  the  reports 
thereon,  the  provisional  grant  of  ]March  16th.  1830,  the  formal 
concession  of  April  8th,  1839,  and  the  order  of  the  governor  of 


774  Meader  v.  Norton 

June  13th,  1840,  that  a  certificate  of  the  approval  of  the  assembly- 
be  issued  to  them. 

The  board  rejected  this  claim,  holding,  in  substance,  that  there 
was  no  evidence  that  any  grant  was  issued  to  the  sisters  ;  that 
the  decree  of  concession  found  in  the  archives  was  not  proof  of 
the  deliver^'-  of  a  title  to  the  parties  interested  ;  that  until  a  docu- 
ment as  evidence  of  the  concession  was  issued  and  delivered  to 
the  grantees  the  favorable  action  of  the  departmental  assembly 
did  not  establish  their  title,  and  the  concession  was  not  completed, 
and  the  property  continued  part  of  the  public  domain,  subject  to 
the  disposition  of  the  authorities  of  the  government ;  and  the  board 
observed  that  this  was  the  view  of  the  governor  and  departmental 
assembly,  as  he  had,  notwithstanding  the  decree  of  concession  to 
the  sisters,  made  two  years  afterwards  a  grant  of  the  same  land 
to  Bolcoff,  which  had  been  approved  by  the  assembly. 

The  entire  decision  proceeded  upon  the  supposition  that  the 
documents  offered  as  evidence  of  Bolcoff 's  title  were  genuine,  and 
that  the  officers  of  Mexico  possessed  the  power  to  re-grant  lands 
which  had  been  once  granted  without  their  previous  surrender  by 
the  first  grantee,  where  the  final  title  papers  had  not  been  issued 
to  the  grantee,  although  such  grant  had  been  approved  by  the 
departmental  assembly. 

The  board  in  its  opinion  also  spoke  of  a  want  of  proof  of  per- 
formance of  the  usual  conditions  of  cultivation  and  inhabitation  ; 
but  this  view  was  held  upon  the  supposition  that  the  residence 
and  cultivation  of  Bolcoff  and  his  wife  and  that  of  her  sisters 
were  under  different  grants.  The  commissioners  held  in  confirm- 
ing his  claim  that  the  proof  showed  cultivation  of  and  residence 
upon  the  land.  Subsequent  to  the  action  of  the  board  upon  these 
claims  the  registry  of  the  prefect  was  discovered,  and  this  dis- 
covery and  other  circumstances  led  to  a  critical  inspection  and 
examination  of  the  documents  upon  which  the  claim  of  Bolcoff 
was  founded,  and  finally  to  the  bringing  of  this  suit. 

The  position  taken  by  the  complainant  was  this  :  that  a  former 
grant,  a  titulo,  or  some  documentary  evidence  of  title  based  upon 
the  concession  of  April  8th,  1839,  was  on  the  same  day  issued  to 
the  three  sisters  ;  that  this  titido  or  grant  passed  into  the  custody 
of  Bolcoff,  and  was  some  years  afterwards  suppressed  or  destroyed 
by  him,  with  the  intent  to  defraud  the  sisters  of  the  property 
granted  to  them,  and  to  secure  the  title  to  himself ;  that  in  the 
execution  of  this  iutent,  the  documents  presented  to  the  board  of 


Meader  v.  Norton.  775 

commissioners,  the  grant  purporting  to  be  issued  to^him,  the  cer- 
tificate of  the  approval  of  the  departmental  assembly,  and  the 
record  of  juridical  possession,  were  fabricated  by  him,  or  others 
at  his  request,  and  the  erasures  made  in  the  decree  of  concession 
to  the  sisters,  and  in  Jimeno's  Index  ;  and  that  a  claim  confirmed, 
and  a  legal  title  obtained  by  these  means,  should  be  controlled 
for  the  benefit  of  parties  equitably  entitled  to  the  property. 

The  defendants  in  the  court  below  did  not  deny  that  the  decree 
of  concession  was  made  to  the  sisters,  but  they  contended  that  the 
interest  of  the  sisters  was  exchanged  with  Bolcoff  for  an  interest 
in  a  tract  of  land-  of  which  he  had  obtained  a  grant,  and  that  in 
consequence  of  this  exchange  the  grant  of  El  Refugio  was  issued 
at  their  request  to  him  instead  of  being  issued  to  them.  The 
agreement  was  stated  to  have  been  this :  that  Majors  and  wife 
should  relinquish  to  Bolcoff  their  interest  in  El  Refugio,  and 
allow  him  to  obtain  a  grant  therefor  in  his  own  name  ;  and  in 
exchange  for  this  that  Bolcoff  should  relinquish  to  Majors  his 
interest  in  a  ranch  known  as  St.  Augustine,  of  which  he  had 
obtained  a  grant  in  1833,  and  allow  ;Maiors  to  obtain  a  grant  for 
the  same,  he  paying  Bolcoff  in  addition  the  sum  of  four  hundred 
dollars.  And  it  was  alleged  that  this  agreement  was  made  after 
the  intermarriage  of  Majors  and  Maria  de  los  Angeles,  and  imme- 
diately carried  into  execution  ;  that  Majors  and  wife  took  posses- 
sion of  St.  Augustine,  and  that  afterwards,  on  the  7th  of  April, 
1841,  Maria  Candida  went  personally  to  the  governor  and  stated 
the  agreement,  when  the  governor,  at  her  request,  issued  the  grant 
to  Bolcoff  alone,  and  that  the  erasures  in  the  decree  of  concession 
and  in  the  index  were  at  the  time  made  by  Jimeno,  the  secretary 
of  State. 

This  statement  of  the  defendants  was  contradicted  by  JSIajors, 
and  was  inconsistent  with  facts  disclosed  by  the  records.  Majors 
obtained  the  ranch  St.  Augustine  from  Bolcoff  by  direct  purchase, 
and  the  transfer  to  him  was  made  before  his  marriage,  and  before 
the  sisters  had  petitioned  for  El  Refugio.  The  transfer  to  him  is 
indorsed  on  the  espediente  of  St.  Augustine  in  the  archives,  and 
bears  date  on  the  14th  of  January.  1839. 

The  alleged  grant  to  Bolcoff  of  April  7th,  1841.  made  no  allusion 
to  any  purchase  or  exchange  with  the  sisters,  or  of  any  abandon- 
ment of  their  rights.  It  recited  that  he  himself  had  petitioned 
for  El  Refugio. 

The  court  below  held  that  the  documents  upon  whicli  the  claim 


776  Meader  v.  Norton. 

of  BoleofF  was  founded  were  all  false,  and  were  fabricated  by 
Bolcoff,  or  some  one  at  his  instigation,  to  defraud  tlie  sisters  of 
their  property  and  secure  the  title  to  himelf ;  that  by  the  false  and 
fabricated  documents,  and  the  suppression  or  destruction  of  the 
grant  to  the  sisters,  a  confirmation  of  the  claim  under  the  alleged 
grant  to  Bolcoff  was  obtained,  and  the  legal  title  secured  to  his 
children  ;  when  in  truth  the  real  title  was  in  the  three  sisters,'  and 
should  have  been  adjudged  to  them ;  and  it  held  that,  under 
these  circumstances,  the  patentees  and  all  persons  holding  under 
them  with  notice  of  the  claim  of  the  sisters,  should  be  decreed  to 
surrender  the  title. 

Besides  insisting  upon  the  genuineness  of  the  alleged  grant  to 
BolcofJ",  and  other  documents  produced  in  support  of  his  title,  the 
defendants  relied,  as  a  defence  to  this  suit,  upon  the  following 
grounds  : 

First.  That  the  claim  of  the  complainant  was  a  stale  claim,  and 
barred  by  the  Statute  of  Limitations. 

Second.  That  the  complainant  had  no  standing  in  court,  by 
reason  of  the  non-presentation  of  the  claim  of  two  of  the  sisters  to 
the  board  of  land  commissioners  for  confirmation,  and  the  rejection 
by  the  board  of  the  claim  of  the  other  sister.     And — 

Third.  That  the  defendants  were  bona  Jide  purchasers  of  some 
portions  of  the  property  for  a  valuable  consideration,  without 
notice  of  the  claim  of  the  sisters  ;  and  for  other  portions  had 
conveyances  or  releases  from  them. 

The  court  below  held — 

1st.  That  to  claim  any  benefit  of  the  Statute  of  Limitations  the 
defendants  were  required  to  state  facts  sufficient  to  bring  the  case 
within  its  operation,  and  then  to  insist  that  by  reason  of  those 
facts  the  remedy  of  the  complainant  was  barred,  and  that  this  had 
not  been  done  by  them  in  this  case. 

2d.  That  the  presentation  or  non-presentation  by  the  sisters  of 
their  claim  under  the  grant  to  the  board  of  land  commissioners  had 
nothing-  to  do  with  the  equitable  relations  between  them  and 
third  parties  ;  which  relations  were  never  submitted  to  the  board 
for  adjudication. 

3d.  That  whilst  equity  would  reach  the  perpetrator  of  the  fraud 
in  this  case,  and  parties  acquiring  the  property  under  him  without 
consideration  or  with  notice  of  the  rights  of  the  real  owners,  it 
would  extend  its  protection  to  purchasers  in  good  faith  for  a  valu- 
able consideration,  without  such  notice. 


Meader  v.  Norton.  777 

The  court  below,  therefore,  directed  that  an  interlocutory  decree 
in  favor  of  the  complainant  be  entered  and  a  reference  be  had  to 
a  master  to  report  which  of  the  defendants  were  bona  fide  pur- 
chasers, without  notice  of  the  claim  of  the  sisters,  and  what  parcels 
were  so  purchased,  and  also  of  what  parcels  the  interest  of  the 
sisters  or  any  of  them  had  been  conveyed  to  the  defendants,  with 
all  necessary  particulars  ;  and  that  upon  the  coming  in  and  con- 
firmation of  his  report  a  final  decree  be  entered  directing  the 
defendants  to  transfer  to  the  complainant  their  title  to  all  parcels, 
and  undivided  interests  m  parcels,  not  thus  acquired  and  held. 

The  case  accordingly  went  to  a  master,  and  his  report  having 
been  confirmed,  a  final  decree  was  entered,  from  which  the  defend- 
ants appealed  to  this  court. 

Messrs.  W.  H.  Lamon  and  W.  G.  M.  Davis  for  the  appellants. 

Mr.  W.  M.  Stewart  contra. 

Mk.  Justice  Clifford  delivered  the  opinion  of  the  court. 

Claims  to  lands  in  California,  by  virtue  of  any  right  or  title 
derived  from  the  former  government,  were  required  to  be  pre- 
sented to  the  land  commissioners,  and  authority  was  vested  in 
the  commissioners  to  decide  upon  the  validity  of  such  claims,  and 
to  certify  their  decisions,  with  the  reasons  for  the  same,  to  the 
district  attorney''  for  the  district. 

Applicants  for  such  confirmations  were  required  to  present  their 
claims  to  the  commissioners  when  sitting  as  a  board ;  but  the  act 
of  Congress  made  no  provision  for  notice  to  any  adverse  claim- 
ant, and  the  proceedings  before  the  commissioners  were  wholly 
ex  parte,  unless  opposed  by  the  district  attorney. 

Power  to  review  such  decisions  was  vested  in  the  district  court, 
on  petition  of  the  claimant,  in  case  of  rejection,  or  of  the  district 
attorney,  in  case  of  confirmation.     (9  Stat,  at  Large,  633.) 

Specific  regulations  were  enacted  as  to  the  form  of  such  peti- 
tions, and  the  provision  was  that  the  district  court  should  proceed 
to  render  judgment  upon  the  pleadings  and  evidence  in  the  case, 
and  upon  such  further  evidence  as  might  be  taken  by  the  order  of 
the  said  court :  and  that  the  court,  on  application  of  the  party 
against  whom  judgment  was  rendered,  should  grant  an  appeal  to 
the  Supreme  Court  of  the  United  States. 

On  the  fifth  of  May.  1852,  a  petition,  signed  by  the  attorneys 
of  Francisco  BolcoflT  and  Juan  Bolcofl",  was  filed  with  the  land 
commissioners,  setting   up   title    to  the   Rancho  El  Refugio,  as 


778  Mbader  v.  Norton. 

grantees  of  their  fatlier,  Jose  Bolcofi;  and  asking  for  a  confirma- 
tion of  their  claim  under  the  act  of  Congress  passed  to  settle 
such  private  claims  to  lands  in  that  State.  They  represented 
that  the  tract  was  granted  to  their  father  during  Mexican  rule,  by 
the  governor  of  that  department,  under  the  colonization  laws 
ordained  bj^  the  supreme  government. 

Pursuant  to  the  requirements  of  the  act  of  Congress,  they  filed 
with  their  petition  their  documentary  evidences  of  title,  consist- 
ing of  the  following  documents  :  (1.)  A  paper  bearing  date  on 
the  7th  of  April,  1841,  purporting  to  be  a  grant  of  the  Rancho  El 
Refugio  to  Jose  Bolcofi",  by  Juan  B.  Alvarado,  governor  of  the 
department  at  the  date  of  the  supposed  grant.  (2.)  The  certifi- 
cate of  Governor  Alvarado,  dated  the  twenty -eighth  of  July,  1841, 
stating  that  the  grant  made  on  the  eighth  of  April,  1839,  in  favor 
of  Jose  BolcoflT,  was  approved  on  the  twenty-second  of  May.  1841 
by  the  departmental  assembly.  (3.)  A  document  dated  the  twenty- 
sixth  of  July,  1842,  purporting  to  be  a  record  of  juridical  posses- 
sion of  the  tract  given  to  the  supposed  grantee  by  the  proper 
Mexican  authorities.  (4.)  The  diseno  or  sketch  of  the  tract 
described  in  the  petition  addressed  to  the  governor  by  the  original 
donee. 

Proof  of  the  handwriting  of  the  persons  whose  names  purport 
to  be  signed  to  the  documents,  was  introduced  by  the  petitioners, 
and  as  no  question  was  made  as  to  the  authenticity  of  the  docu- 
ments, they  were  received  as  genuine,  and  treated  as  such  in  the 
hearing,  and  the  commissioners  entered  a  decree  in  favor  of  the 
petitioners,  confirming  the  claim. 

Both  parties  concede  that  an  appeal  was  taken  on  behalf  of  the 
United  States  to  the  district  court,  but  it  was  never  prosecuted  to 
eflf'ect,  and  was  subsequently  dismissed. 

Patents  may  be  issued  for  all  claims  confirmed  by  the  commis- 
sioners, where  no  appeal  was  taken,  the  claimant  complying  with 
the  conditions  specified  in  the  thirteenth  section  of  the  act  pro- 
viding for  the  adjudication  of  such  claims  ;  that  is,  he  must  pre- 
sent to  the  General  Land  Office  an  authentic  certificate  of  such 
confirmation,  and  a  plat  or  survey  of  the  land,  duly  certified  and 
approved  by-  the  surveyor  general.  Such  an  application  was 
accordingly  made  by  the  confirmees  to  the  Commissioner  of  the 
General  Land  Office,  and  he,  on  the  fourth  of  Febriiar}^  1860, 
issued  a  patent  in  due  form  to  the  persons  in  whose  favor  the 
decree  was  entered,  and  to  whom  the  certificate  of  confirmation 


Meader  v.  Norton.  779 

was  granted.     Title  to  the  land  is  claimed  by  the  appellants  under 
that  patent. 

Attention  will  now  he  called  to  the  evidences  oftitle  under  which 
the  appellee  claims  in  this  case.  On  the  thirteenth  of  February. 
1839.  three  orphans,  daughters  of  Joaquin  Castro,  a  deceased 
Mexican  citizen,  to  wit.  Maria  Candida.  Maria  Jancinta  and  Maria 
de  los  Angeles,  presented  their  petition  to  Juan  B.  Alvarado, 
governor  of  California,  asking  for  a  grant  of  the  rancho  El  Refugio. 
Reference  of  the  petition  was  made  to  the  administrator  of  the 
adjoining  mission,  and  he  having  reported  on  the  sixteenth  of 
March,  1839,  that  the  land  could  be  granted,  as  the  land  was  not 
necessary  to  the  mission,  the  governor,  on  the  same  day,  made  a 
provisional  grant  of  the  same  to  the  petitioners  and  referred  the 
espediente  to  the  prefect  of  the  district,  as  was  the  usual  course  in 
respect  to  such  applications.  Immediate  attention  was  given  to- 
the  subject  by  that  officer,  and  on  the  twentieth  of  the  same  month 
he  reported  to  the  governor  that  the  land  was  vacant,  and  recom- 
mended that  the  grant  should  be  issued  to  the  petitioners. 

Evidently  the  several  documents  constituting  the  complete 
espediente,  show  a  full  compliance  with  all  the  requirements  of  the 
colonization  laws,  and  it  is  quite  clear  that  the  case  was  so  under- 
stood by  the  governor,  as  on  the  eighth  of  April,  in  the  same  year, 
he  issued  the  concession  in  which  the  petitioners  are  declared  to 
be  the  owners  in  fee  of  the  land.  Specific  boundaries  are  given  to 
the  tract  granted,  and  the  directions  in  the  same  document  are  that 
the  espedientehe  reserved  for  the  consideration  of  the  departmental 
assembly  and  their  due  approval  of  the  same.  Due  report  of  the 
proceedings  was  made  to  that  tribunal,  and  the  record  shows  that 
on  the  twenty-second  of  May,  1840.  they  formally  approved  of  the 
grant. 

Satisfactory  proof  was  introduced  that  Maria  Candida  inter- 
married with  Jose  Bolcoff,  and  that  Maria  de  los  Angeles  inter- 
married with  Joseph  L.  Majors.  Prior  to  the  marriage  of  Maria 
de  los  Angeles,  the  three  sisters  lived  together  as  members  of  the 
family  of  Jose  Bolcoff,  the  husband  of  the  elder,  and  Maria  Ja- 
cinta  continued  to  reside  in  his  family  on  the  premises  until  1850. 
when  she  became  a  nun  and  entered  a  convent. 

By  the  record  it  appears  that  Joseph  L.  Majors,  on  the  thirtieth 
of  April,  1852,  presented  a  petition  to  the  connnissioners  claiming 
title  in  right  of  his  wife  to  one-third  of  the  rancho  El  Refugio, 
setting  up  the  concession  made  by  the  governor  to  his  wife  and 


780  Mbader  v.  Norton. 

her  two  sisters,  and  asked  that  the  claim  might  be  confirmed.  In 
support  of  his  claim  he  introduced  the  several  documents  referred 
to  as  tending-  to  sliow  that  the  concession  to  the  three  sisters  was 
a  valid  grant  of  the  rancho  ;  but  the  commissioners  on  the  thirtieth 
of  January,  1855,  rejected  the  claim,  evidently  proceeding  upon 
the  ground  that  the  documents  introduced  by  the  other  claimants 
were  genuine. 

Apart  from  that  consideration  the  commissioners  were  doubt- 
less much  influenced  by  the  testimonj^  of  the  governor,  who  was 
examined  as  a  witness  by  the  successful  claimants.  He  admitted 
that  he  granted  the  rancho  in  the  first  place  to  the  three  sisters, 
but  he  stated  that  he  made  the  grant  at  the  request  of  IVIaria  Can- 
dida, the  wife  of  Jose  Bolcoff.  and  that  he  subsequently  regranted 
the  land  to  her  husband  at  her  request  and  upon  her  representa- 
tion that  an  arrangement  to  that  effect  between  her  husband  and 
the  husband  of  her  other  married  sister  had  been  made.  His 
statement  was  that  he  granted  the  new  title  to  Jose  Bolcoff  because 
the  parties  agreed  upon  it,  although  he  admitted  that  neither  of 
the  other  two  grantees  ever  came  before  him  or  made  any  such 
request. 

Subsequent  investigations  led  to  the  discovery  that  the  documents 
or  most  of  the  documents,  introduced  in  support  of  the  claim 
of  Jose  Bolco^.  were  forged  and  fraudulent,  which  induced  the 
appellee,  claiming  title  under  the  three  sisters,  to  commence  the 
present  suit. 

Confirmed  as  the  claim  of  Jose  Bolcofi'  was  at  the  same  time 
that  the  claim  of  the  three  sisters  was  rejected,  they  did  not  appeal 
nor  would  they  have  been  benefited  if  they  had,  as  the  claim  was 
confirmed  to  the  other  claimants  and  they  were  not  parties  in  that 
litigation  and  could  not  appeal  from  the  decree.  Had  all  the  facts 
and  circumstances  been  known  the  unsuccessful  claimant  might 
perhaps  have  presented  a  petition  to  the  district  judge  and  have 
procured  an  injunction  restraining  the  confirmees  of  the  claim 
••  from  suing  out  a  patent  for  the  same  until  title  thereto"  had 
been  "•finally  decided"  but  it  is  a  sufficient  answer  to  anj'-  such 
suggestion  that  the  patent  was  issued  before  the  alleged  forgeries 
were  discovei'ed. 

Remediless  as  the  appellee  was  at  law,  he  instituted  the  present 
suit  in  the  circuit  court.  His  theory  is,  as  shown  in  the  bill  of 
complaint,  that  the  grant  was  in  fact  made  to  the  three  sisters, 
and  that  their  names  were  erased  and  the  name  of  the  successful 


Meader  r.  Norton.  781 

claimant  inserted  in  tlie  same,  and  that  the  commissioners  were 
induced  by  false  swearintj.  forgery,  and  fraud,  to  confirm  the  claim 
to  the  grantees  of  the  party  guilty  of  all  those  offences,  as  the 
means  of  his  success  and  of  the  defeat  of  the  claim  of  the  three 
sisters,  to  whom  the  rancho  really  belonged. 

All  such  charges  are  denied  in  the  answer,  but  they  are  fully 
proved  by  the  documents  exhibited  in  the  case,  and  by  such  facts 
and  circumstances  as  leave  no  doubt  in  the  mind  of  the  court 
that  the  charges  are  true.  Even  the  governor  admits,  in  his 
deposition  taken  in  this  case,  tliat  the  espcdU^nte.  including  the 
concession,  was  prepared  in  the  name  of  the  three  sisters  :  but  he 
states  that  when  the  titulo  was  prepared  the  wife  of  Jose  Bolcoff 
came  before  him.  and  that  upon  her  representation  that  her  sisters 
were  to  receive  an  interest  in  another  rancho,  the  title  papers  were 
made  out  in  the  name  of  her  husband. 

Such  a  theory  is  highly  improbable,  but  the  much  better  answer 
to  it  is  that  it  is  clearly  and  satisfactorily  disproved.  Beyond  all 
doubt  the  entire  espediente,  except  the  titulo,  was  in  the  name  of 
the  three  sisters,  and  the  formal  concession,  which  was  also  in 
their  name,  directed  that  the  ultimate  title  should  be  issued  to 
them  and  be  recorded  in  the  proper  book ;  and  discoveries  made 
since  the  patent  was  issued  show  that  the  grant  was  entered  in 
the  Toma  de  Razon  and  in  Jimeno's  Index. 

Much  weight  is  due  to  those  documents  as  evidences  of  title, 
even  when  they  are  not  introduced  in  the  particular  case  before 
the  court.  They  were  not  produced  before  the  commissioners, 
and  it  may  be  doubted  whether  they  would  have  benefitted  the 
case  of  the  three  sisters,  if  they  had  been,  as  their  names  ar^ 
erased  in  the  entry  and  the  name  of  Jose  Bolcoff  written  in  their 
place,  and  as  no  suspicion  of  forgery  or  fraud  existed  at  that 
time  it  may  be  doubted  whether  the  production  of  the  documents 
would  have  changed  the  result.  Conjectures  in  that  behalf,  how- 
ever, are  of  no  avail,  as  it  now  appears  that  all  or  nearly  all  of 
the  title  papers  introduced  to  support  that  title  were  forged  and 
fraudulent,  showing  to  the  entire  satisfaction  of  the  court  that  the 
equity  of  the  case  was  in  the  three  sisters. 

Furtiier  argument  upon  that  topic  is  unnecessary,  as  the  proofs 
are  persuasive,  convincing,  and  decisive.  Detailed  reference  of 
them  Js  given  in  the  opinion  delivered  by  the  circuit  fourt.  and 
to  that  the  parties  can  recur  if  they  desire  to  examine  the  docu- 


782  Meader  v.  Norton. 

inents  or  the  statements  of  the   witnesses  as    exhibited  in  the 
depositions  sent  np  in  the  record. 

Suppose  that  is  so,  still  it  is  insisted  by  the  appellants  that  the 
decree  should  be  reversed  because  the  decree  of  the  commission- 
ers, as  they  contend,  was  final  and  conclusive  between  the  origi- 
nal claimants.  UnquestionaV)ly  it  is  a  general  rule  that  when 
jurisdiction  is  delegated  to  a  tribunal  over  a  subject  matter,  and 
its  exercise  is  confided  to  their  discretion,  the  decision  of  the  mat- 
ter, in  the  absence  of  fraud,  is  in  general  valid  and  conclusive. 
Even  fraud  will  not  in  every  case  open  the  judgment  or  decree  to 
review  where  the  proceeding  is  not  a  direct  one,  but  it  is  not 
important  to  enter  much  into  that  field  of  inquiry,  as  the  fifteenth 
section  of  the  act  under  which  the  commissioners  were  appointed 
provides  that  the  final  decrees  rendered  by  the  commissioners  or 
by  the  District  or  Supreme  Court  of  the  United  States,  or  any 
patent  to  be  issued  under  the  act,  shall  be  conclusive  between 
the  United  States  and  the  said  claimants  only,  and  shall  not  affect 
the  interests  of  third  persons.     (9  Stat,  at  Large.  634.) 

Nothing  more  is  contemplated  by  the  proceedings  under  that 
act  than  the  separation  of  the  lands  which  were  owned  by  indi- 
viduals from  the  public  domain.  {United  States  v.  Morillo,  1  Wal- 
lace, 709  ;  Beard  v.  Federy,  3  Wallace,  493  ;  United  States  v.  San- 
chez, Hoffman,  Land  Cases,  133  ;  Martin  v.  United  States,  Land 
Cases.  146  ;    United  States  v.  Ortega,  Land  Cases,  135.) 

Argument  is  necessary  to  show  that  a  patent  in  a  suit  at  law  is 
conclusive  evidence  of  title  against  the  United  States,  and  all 
others  claiming  under  the  United  States  by  a  junior  title.  Until 
the  patent  issues  the  fee  is  in  the  government,  but  when  it  issues 
the  legal  title  passes  to  the  patentee.  Persons  claiming  to  hold 
the  land  against  the  patent  cannot  have  relief  in  a  suit  at  law, 
but  courts  of  equity  have  full  jurisdiction  to  relieve  against  fraud 
or  mistake,  and  that  power  plainly  extends  to  cases  where  one 
man  has  procured  the  patent  which  belongs  to  another  at  the 
.time  the  patent  was  issued.  {Bagnell  v.  Broderick,  13  Peters, 
436  :   Patterson  v.  Winn,  11  Wheaton,  380.) 

Where  one  party  has  acquired  the  legal  title  to  property  to 
which  another  has  the  better  right,  a  court  of  equity  will  convert 
him  into  a  trustee  of  the  true  owner,  and  compel  him  to  convey 
the  legal  title.     {Stark  v.  Starr,  6  Wallace,  419.) 

Objection  was  taken  in  the  court  below  that  some  of  the  respon- 
dents were  innocent  purchasers,  but  that  objection  cannot  have 


Miller  v.  Dale.  783 

anj'  weight  at  this  time,  as  all  the  appellants  before  the  court  had 
notice  of  the  title  of  the  appellee,  as  clearly  appears  by  the  report 
of  the  master.  None  of  those  who  purchased  without  notice  are 
embraced  in  the  decree. 

Laches  and  the  statute  of  limitations  are  set  up  in  argument,  but 
such  defences  cannot  prevail  where  the  relief  sought  is  grounded 
on  a  charge  of  secret  fraud,  and  it  appears  that  the  suit  was  com- 
menced witliin  a  reasonable  time  after  the  evidence  of  the  fraud 
was  discovered.  Decree  affirmed. 

Mr.  Justice  Field  did  not  sit  in  this  case,  nor  participate  in 
its  decision. 


Miller  et  al.  v.  Dale  et  al. 
October  Term.  187.5.— 2  Otto,  47.3. 

1.  In  an  action  of  ejectment  for  land  in  California,  where  botli  parties 

assert  title  to  the  premises,  the  phiintift'  under  a  concession  of  the 
former  government,  confirmed  h}^  the  tribunals  oi  the  United  States, 
and  an  approved  survey  under  the  act  of  Congress  of  June  14, 1860, 
and  the  defendant  under  a  patent  of  the  United  States  issued  upon 
a  similar  confirmed  concession,  the  inquiry  of  the  court  must  extend 
to  the  character  of  the  original  concessions  to  ascertain  which  of  the 
two  titles  gave  the  better  right  to  the  premises;  and.  if  these  do  not 
furnish  the  means  for  settling  the  controversy,  reference  must  be 
had  to  the  proceedings  before  the  tribunals  and  oflicersof  the  United 
States  by  which  the  claims  of  the  parties  were  determined. 

2.  Where  the  original  concessions  in  such  cases  were  without  specific 

botmdaries,  being  floating  grants  for  quanritj'.  the  one  first  located 
by  an  approved  survey  appropriated  the  land  embraced  by  the 
survey. 

3.  The  object  of  the  proceeding  before  the  tribunals  of  the  I'nited  States 

for  the  approval  of  a  survey  of  a  confirmed  claim  to  land  in  Cali- 
fornia under  a  Mexican  or  Spanish  grant,  pursuant  to  the  act  of 
Congress  of  June  14.  1860  (12  Stat.,  ;54),  was  to  insure  conformity  <»f 
the  survey  with  the  decree  of  confirmation,  and  not  to  settle  any 
question  of  title  against  other  claimants.  '1  he  approval  of  the  court 
established  the  fact  that  the  survey  was  in  conformity  with  the 
decree  of  confirmation  ;  or,  if  the  decree  was  for  quantity  onlj-,  that 
the  survey  was  authorized  by  it,  and  is  conclusive  as  to  the  location 
of  the  land  against  all  floating  grants  not  previously  located. 

Error  to  the  Supreme  Court  of  the  State  of  California. 
Mr.  S.  0.  Houghton  for  the  plaintiffs  in  error. 
Mr.  Jeremiah  S.  Black  contra. 


784  Miller  v.  Dale 

Mr.  Justice  Field  delivered  the  opinion  of  the  conrt. 

This  is  an  action  of  ejectment  for  the  possession  of  certain 
real  property  situated  in  the  county  of  Santa  Clara,  in  the  State 
•of  California.  The  plaintiffs  assert  title  to  the  premises  under  a 
concession  of  the  former  government,  confirmed  by  the  tribunals 
of  the  United  States,  and  .an  approved  survey  under  the  act  of 
Congress  of  June  14.  1860.     (12  Stat.,  34.  sect.  5.) 

That  act  gives  to  an  approved  survey  upon  a  confirmed  claim 
the  effect  and  validity  of  a  patent.  Some  question  is  made  whether 
this  effect  can  be  given  to  a  survey  approved  like  the  one  here 
since  the  repeal  of  the  act,  notwithstanding  the  reservation  of 
jurisdiction  in  pending  cases  by  the  repealing  clause.  We  do 
not  deem  it  material  to  determine  the  question,  and,  for  the  pur- 
poses of  this  case,  shall  consider  that  the  plaintiffs  stand  before 
the  court  upon  a  title  as  fully  established  as  if  supported  by  a 
patent.  The  confirmation  under  which  they  claim  was  made  bj- 
the  District  Court  of  the  United  States  in  January,  1859,  and  the 
survey  was  approved  hy  that  conrt  in  June.  1865,  and,  on  appeal, 
b}^  the  Circuit  Court  in  September,  1866. 

The  defendants  assert  title  to  the  premises  under  a  patent  issued 
upon  a  concession  of  the  Mexican  government,  confirmed  hy  the 
tribunals  of  the  United  States,  the  confirmation  dating  in  March, 
.1857,  and  the  patent  being  issued  in  January,  1859.  The  approved 
survey  of  the  plaintiffs  and  the  patent  of  the  defendants  both 
include  the  land  in  controversy.  The  question,  therefore,  for  con- 
sideration is,  which  of  the  two  titles  gave  the  better  right  to  the 
premises.  To  answer  this  question  we  must  look  into  the  character 
of  the  orignal  concessions,  and  if  they  furnish  no  guide  to  a  just 
conclusion,  we  must  seek  a  solution  in  the  proceedings  had  before 
our  tribunals  and  officers  by  wliich  the  claims  of  the  parties  were 
determined. 

Looking  at  the  original  concessions,  we  find  that  they  were  mere 
licenses  to  settle  upon  and  occupy  vacant  lauds  of  the  former 
government,  without  designation  as  to  locality,  except  in  the 
most  vague  and  general  way.  It  appears  that  one  Mariano  Castro, 
through  whom  the  plaintiffs  trace  their  title,  had,  as  early  as  1802, 
obtained  permission  from  the  viceroy  of  Mexico  to  settle  upon  a 
tract  of  land  within  the  jurisdiction  of  Monterey,  known  as  La 
Brea ;  but,  objection  to  his  settlement  there  being  made  by  the 
priests  of  the  adjoining  mission,  he  was  directed  to  select  another 
tract.     He  accordingly  solicited  of  the  military  commander  of  the 


Miller  r.  Dale.  785 

district  the  tract  called   El  Carneadero,  alleged  to  be  the  same 
tract  since  known  as  Las  Animas,  but  whether  any  action  was 
ever  taken  bj^the  public  authorities  upon  his  petition,  further  than 
to  hear  objections  also   made  by  the  priests  to   his    settlement 
there,  we    are    not  informed ;  and  the   archives  of    the    depart- 
ment, searched    by   direction   of    the    governor,    disclose    noth- 
ing on  the  subject.     After  Castro's  death,   his  widow,  in   1833, 
in  a  petition  to  the  governor,  represented  that  her  husband  had 
taken  possession  of  the  tract,  Las  Animas,  in  1806.  under  a  con- 
cession from  the  governor,  but  that  she  had  not  the  title  papers, 
and  asked  that  a  title  be  issued  to  her.     In  1835   her  attorney 
renewed  the  application,  affirming  that  the  land  had  been  granted 
to  her  husband,  but  that  the  title  papers  had  been  destroyed  by 
fire.     Upon  receipt  of  this  petition  the  governor  ordered  a  search 
among  the  archives  of  the  department  for  a  record  of  the  alleged 
concession  ;  but,  as  already  stated,  none  was  found.    In  consider- 
ation, however,  of  the  evidence  which  they  afforded  of  the  right 
to  the  tract  under  the  name  of  La  Brea,  obtained  by  the  deceased 
from  the  vice-royal  government  in   1802.  the  governor  directed 
that  a  certificate  or  testimonial  of  the  record  in  the  case  {expendi- 
ente)  he  issued  for  the  protection  of  the  parties  interested  ;  and. 
as  the  boundaries  had  not  been  expressly  defined  within  which 
they  must  confine  themselves,  he  added  that  those  set  fortli  in  the 
plat  accompanjing  the  petition  of  the  attornej^  should  in  future 
be  regarded  as  such,  with  a  reservation,  however,  of  the  rights 
of  any  third  party  who  might  feel  aggrieved  by  the  proceeding. 
This  certificate  or  testimonial,  issued  in  1835,  with  the  documents 
upon  which  it  was  founded,  constituted  the  record  evidence  of  the 
concession  upon  which  the  confirmation  and  survey  were  had, 
under  which  the  plaintiffs  claim. 

Previous  to  the  issue  of  this  document,  and  in  1831,  another 
person  by  the  same  name,  Mariano  Castro,  under  whom  the 
defendants'  claim,  had  obtained  from  the  governor  of  California  a 
license  to  occupy  for  cultivation  a  tract  of  land  called  El  Soils. 
Under  this  license  he  went  into  possession  of  vacant  land,  and 
remained  in  possession  until  the  cession  of  the  country  to  the 
United  States.  His  widow  and  children  obtained  the  decree  of 
confirmation  and  patent. 

Neither  of  the  concessions  transferred  the  title,  or  conferred 
upon  the  grantees  any  interest  in  the  land  occupied  by  them 
other  than  a  right  of  possession  during  the  pleasure  of  the  gov- 

50 


786  Miller  v.  Dale. 

ernment.  Their  possession  under  these  licenses  did  not  raise 
even  an  equity  in  their  favor  against  the  United  States.  {Serrano 
V.  Uiiited  States,  5  Wall.,  461.) 

In  this  condition  of  the  property  the  party  who  first  obtained  a 
confirmation  of  his  claim,  and  its  definite  location  by  an  approved 
survey,  took  the  title  to  the  land  embraced  by  the  survey.  But 
independent  of  this  position,  if  we  could  regard  the  original  con- 
cessions— the  one  issued  to  the  first  Castro  in  1802,  and  the  one 
issued  to  the  second  Castro  in  1831 — as  ordinary  grants  of  the 
governor  of  the  department,  and,  as  such,  passing  a  title,  though 
of  an  imperfect  character,  to  the  grantees,  the  same  result  would 
follow,  for  they  could  then  be  treated  only  as  floating  grants. 
Neither  of  them  gave  any  definite  boundaries  to  the  tract  referred 
to  bj'  the  general  designation  of  place,  and  neither  specified  any 
quantity  ;  that  was  only  a  matter  of  inference  from  subsequent 
documents.  And  equal  vagueness  as  to  the  location  and  extent  of 
the  land  solicited  chai'acterized  the  petitions  of  the  parties.  That 
of  the  first  Castro  only  stated  that  La  Brea  was  situated  within 
the  jurisdiction  of  Monterey,  and  distant  three  or  four  leagues 
from  an}'  mission  or  pueblo.  The  term  appears  to  have  been 
applied  to  a  large  region  of  country  in  that  district.  The  petition 
of  the  second  Castro  only  describes  El  Solis,  the  tract  which  he 
desired,  as  a  place  within  the  jurisdiction  of  the  same  military 
post.  Under  these  circumstances,  the  concessions  being  without 
specific  boundaries  by  which  the  quantity  embraced,  when  ascer- 
tained, could  be  indentified,  the  only  rule  which  the  court  can  fol- 
low in  actions  at  law  is  to  consider  the  one  first  located  by  an 
approved  survey  as  having  appropriated  the  land  covered  by  the 
survey.  This  rule  was  substantially  recognized  in  one  of  the 
earliest  cases  which  came  before  this  court  for  consideration — the 
Fremont  case,  reported  in  the  17th  of  Howard.  The  grant  to 
Alvarado,  under  which  Fremont  claimed,  was  for  ten  leagues  within 
exterior  boundaries  embracing  a  much  greater  quantity ;  and 
while  the  court  held  that,  as  between  the  government  and  the 
grantee,  the  grant  passed  to  him  a  right  to  the  quantity  of  land 
mentioned  to  be  laid  off  by  official  authority  in  the  territory 
described,  it  said,  '•  that  if  any  other  person  within  those  limits  had 
afterwards  obtained  a  grant  from  the  government  by  specific 
boundaries  before  Alvarado  had  made  his  survey,  the  title  of  the 
latter  grantee  could  not  be  impaired  by  any  subsequent  survey  of 
Alvarado."     As  between  the  individual  claimants  from  the  gov- 


Miller  v.  Dale.  787 

ernment  the  court  added,  "the  title  of  the  part}^  who  had  obtained 
a  grant  for  the  specific  land  would  be  the  superior  and  better  one  ; 
for,  b}^  the  general  grant  to  Alvarado,  the  government  did  not 
bind  itself  to  make  no  other  grant  within  the  territor}^  described 
until  after  he  had  made  his  surve}'." 

Referring  to  this  language  in  the  recent  case  of  Henshatc  v. 
Bissell,  18  Wall.,  267,  we  observed  that  "a  second  floating  grant, 
the  claim  under  which  is  first  surveyed  and  patented,  and  thus 
severed  from  the  public  domain,  would  seem  to  stand,  with  refer- 
ence to  an  earlier  floating  grant  within  the  same  general  limits, 
in  the  position  which  the  subsequent  grant,  with  specific  bounda- 
ries mentioned  in  the  citation,  would  have  stood  to  the  general 
grant  to  Alvarado." 

Upon  this  rule  the  land  department  of  our  government  con- 
stantly acts  with  reference  to  floating  warrants  issued  under  the 
legislation  of  Congress  to  soldiers  and  others.  The  warrant  first 
located  takes  the  land,  tliough  it  bear  date  on\y  of  yesterdaj'. 
The  date  of  the  warrant  is  of  no  moment.  So  with  Mexican  float- 
ing grants,  except  that  they  are  usually  confined  within  certain 
general  limits,  the  one  first  located  takes  the  land.  Here  the 
survey  of  the  defendants  was  made  and  approved  in  1858,  sev- 
eral 3"ears  before  the  approval  of  the  survey  under  which  the 
plantifl's  claim. 

It  is  contended  with  much  earnestness  that  the  fact  that  the 
survey  of  the  plaintitfs  received  the  approval  of  the  District  and 
Circuit  Courts  of  tlie  United  States  gave  it  conclusive  efficacy 
upon  the  title,  and  determined  that  it  was  superior  to  that  of  the 
defendants.  This  position  is  based  upon  a  misconception  of  the 
object  of  subjecting  survej^s  of  confirmed  claims  under  Mexican 
concessions  to  the  consideration  of  the  court.  It  was  not  to 
settle  the  question  of  title.  So  important  a  matter  affecting  the 
rights  of  parties  as  that  would  hardl}^  have  been  left  to  proceed- 
ings of  a  summary  character.  The  object  of  the  proceeding  was 
to  insure  conformit}'  of  the  survey  with  the  decree  upon  which  it 
was  made.  If  the  decree  gave  specific  boundaries  the  court  was 
to  see  that  the  survey  followed  them  :  if  the  decree  was  for  quantitj' 
the  court  was  to  see  that  the  survey  did  not  embrace  a  greater 
quantity — that  the  land  was  taken  in  a  compact  form  ;  or  if  the 
grantee  had  himself  exercised  a  right  of  selection,  and  had  settled 
upon  and  improved  particular  parcels,  or  sold  parcels  to  others, 
that  the   survey,  if  practicable,  included   such  parcels,  and  also 


788  Miller  v.  Dale. 

that  it  was  made  with  proper  regard  to  the  rights  of  others  who 
had  settled  upon  the  laud,  especially  when  they  had  been  induced 
to  make  improvements  by  the  grantee  himself.  Original  surveys 
were  left  entirely  to  the  action  of  the  local  surve^^or  and  the  land 
department.  Great  complaints  were  sometimes  made  that  surveys 
thus  established  were  unjustly  extended  in  directions  so  as  to 
include  the  settlements  and  improvements  of  others,  and  contests 
over  them  were  in  consequence  often  prolonged  for  years.  To 
prevent  possible  abuses  in  this  way  the  act  of  Congress  of  June 
14.  1860,  was  passed,  allowing  surveys,  when  objection  was  made 
to  their  correctness,  to  be  brought  before  the  court  and  subjected 
to  examination,  and  requiring  them  to  be  corrected  if  found  to 
vary  from  the  specific  directions  of  the  decrees  upon  which  they 
were  founded :  or,  if  the  decrees  contained  no  specific  directions, 
from  the  general  rules  governing  in  such  cases.  The  approval  of 
the  court  established  the  fact  that  the  survey  was  in  conformity 
with  the  decree  of  confirmation  ;  or,  if  the  decree  was  for  quantity 
only,  that  the  survey  was  authorized  by  it,  and  in  either  case  the 
approval  rendered  the  survey  conclusive  as  to  the  location  of  the 
land  against  all  floating  grants  not  previously  located.  The  ques- 
tions then  left  for  controversy  before  the  courts  related  to  the 
title  of  the  propertj^,  the  parties  proceeding  upon  the  established 
conformity  of  their  respective  surveys  with  the  decrees  upon  which 
they  were  founded. 

The  case  of  Henshaw  v.  Bissell,  upon  which  counsel  seem  to 
rely,  does  not  militate  against  the  views  here  stated.  The  ques- 
tion there  was,  not  as  to  which  of  two  floating  grants  carried  the 
premises.  Onty  one  of  the  grants  there  under  consideration,  was 
floating.  The  other  grant  had  specific  boundaries,  or  such  descrip- 
tive features  as  to  render  its  limits  easily  ascertainable  ;  and  the 
court  held  that  the  right  of  the  grantee  to  the  land  thus  desig- 
nated could  not  be  interfered  with  by  the  donee  of  the  floating 
grant.  A  grant  of  that  specific  description  necessarily  carried 
the  land  described,  unless  appropriated  by  an  earlier  grant ;  and 
no  subsequent  location  of  a  floating  grant  upon  the  premises 
could  impair  the  title. 

It  is  urged  that  the  testimonials  issued  in  1835,  although 
intended  primarily  as  evidence  of  the  proceedings  taken  in  1802, 
and  of  the  license  granted  by  the  viceroy  of  Mexico,  established 
the  boundaries  of  the  settlement  of  the  first  Castro  ;  so  that,  from 
that  time,  the  license  ceased  to  be  a  general  and  floating  one,  and 


Miller  v.  Dale.  789 

became  a  license  to  occupy  a  specific  tract.  Admitting  this  view 
of  tlie  effect  of  the  testimonial  to  be  correct,  the  answer  is 
obvious — the  title  of  the  grantee  or  licensee  was  not  changed  b}' 
a  limitation  of  his  right  of  occupation  to  a  specific  tract ;  and  the 
designation  of  the  boundaries  reserved  the  rights  of  an\'  third 
party,  which  were  to  be  left  uninjured — that  is,  not  encroached 
upon.  The  second  Castro  was  then  in  possession  of  a  portion  of 
the  tract  within  those  l)oundaries,  liis  right  being  of  tlie  same 
character — that  of  occupancy  l)v  permission  of  tlie  government. 
The  decree  confirming  liis  claim,  and  the  survey  following  it, 
approved  by  the  land  department,  are  conclusive  as  to  the  extent 
of  his  possession.  The  plaintiff  shows  no  better  claim  to  the 
premises  thus  possessed  by  producing  a  testimonial  establishing 
the  boundaries  of  his  settlement,  which,  at  the  same  time,  pro- 
vided that  existing  rights  of  others  should  remain  unaffected  b}' 
the  proceeding. 

It  was  suggested  on  the  argument  tliat  the  decree  confirming 
the  concession  of  the  El  Solis  rancho,  was  obtained  upon  an 
erroneous  and  fraudulent  translation  of  certain  documents  intro- 
duced into  the  case,  which,  if  correctly  translated,  would  have 
defeated  the  claim,  by  sliowing  that  the  concession  was  denied 
instead  of  being  made  by  the  INIexican  government. 

If  this  be  so,  the  plaintiffs  can  proceed  in  ecpiity.  where  the 
land  has  not  passed  to  bona  fide  purchasers  without  notice,  to 
remove  the  obstacle  to  the  operation  of  their  title  arising  lYom 
the  defendants"  patent,  or  to  compel  the  patentees  to  hold  the  land 
in  trust  for  their  benefit,  or  in  some  other  appropriate  way.  But 
in  this  action  of  ejectment  the  plaintiffs  must  rely  upon  their  legal 
title,  and  that  arising  subsequent  to  the  title  of  the  defendants, 
thev  cannot  recover.  Judfjnu^nt  affirmed. 


ACTS  OF  CONGRESS  CONSTRUED  OR  CITED. 


Sept.  24,  17S0.      Judiciary  act,  24th  section.     1  Stat.,  85.— 067. 
Sept.  24,  17?<9.      Judiciary  act.  25th  section.     1  Stat.,    85.— 30,    113, 
140,  178,  281.  470,  503,  594,  671,  715,  718,  720,  730. 
May  18,  179G.      Providing  for   tl»e    survey    and   sale    of  the  public 

lands.     1  Stat.,  464.-48,  546. 
.Tune  1,  1796.         Reirulating  grants  of  land.     1  Stat.,  491.— 548. 
April  7,   1798.       Authorizing  the  establishment  of  a  government  in 

the  Mississippi  Territory.     1  Stat.,  549. — 517. 
May  3,  1798.         Providing  for  the  further  defence  of  the  ports  and 
harbors  of  the  United  States.     1   Stat.,  554. — 34. 
March  1,  1800.      Relating   to  the  location  of  bounty  land   warrants, 

&c.     2  Stat.,  14.-563. 
May  10,  1800.       Providing  for  the  sale  of  the  public  lands.     2  Stat., 

73.-48,  64,  71. 
March  3,  1803.      Regulating  grants  of  land,  &c.     2  Stat.,  229.-548, 

671. 
March  26,  1804.    An  act  making   provision   for   the   disposal    of  the 
Feb.  11,  1805.       An  act  concerning  the  mode  of  surveying  the  public 
lands  of  the  United  States.     2  Stat.,  313.-546. 
public   lands   in   the  Indiana  Territory.     2  Stat., 
277.-48,  463,  548. 
March  2,  1805.      An  act  for  ascertaining  and  adjusting  private  land 

claims  in  Louisiana.     2  Stat.,  324. — 49. 
April  21,  1806.     An  act  for  ascertaining  and  adjusting   private  land 

claims  In  Louisiana.     2  Stat.,  391.— 49. 
April  21,  1806.     Relating  to  donation  entries  in  Mississippi.     2  Stat., 

400.-678. 
April  21,  1806.     An    act   for  establishing    trading   houses   with   the 

Indian  tribes.     2  Stat-,  402.-34. 
March  3,  1807.      Providing  for  the  disposal  of  public  lands.    2  Stat., 

448.-463. 
.June  14,  1809.       Providing   for  the  erection  of  fortifications,  &c.     2 

Stat.,  547.-34. 
June  15,  1809.       Establishing  aland  office  in  the  Mississippi  Territory. 

2  Stat..  548.-49. 
Feb.  20,  1811.       Providing  for   the  admission  of  I^ouisiana  into  the 

Union.     2  Stat.,  642.-195,  548. 
March  3,  1811.      Providing    for    the    final   adjustment   of  claims  to 
lauds,  and  for  the  sale  of  the  public  lands  in  Loui- 
siana.    2  Stat.,  002.— 43,  49,  387,  451,  548. 


792  ACTS  OF  CONGRESS.  , 

Feb.  20,  1812.  For  the  revision  of  former  confirmations  of  private 
land  claims  in  Illinois.     2  Stat,,  G77. — 652. 

April  8,  1812.  Admitting  the  State  of  Louisiana  into  the  Union. 
2  Stat..  701.— 523,  548. 

April  14,  1812.  An  act  to  enlarge  the  limits  of  the  State  of  Loui- 
siana.    2  Stat.,  708.— 519. 

April  25,  1812.  An  act  for  ascertaining  the  titles  and  claims  to 
lands  in  Louisiana,  east  of  the  river  Mississippi. 
2  Stat.,  713.— 179. 

April  25,  1812.  An  act  to  establish  the  General  Land  Office.  2 
Stat.,  717.— 588. 

May  G,  1812.  An  act  to  provide  for  designating,  surveying,  and 
granting  the  military  bounty  lauds.  2  Stat.,  728. 
—509,  574. 

June  4,  1812.  Providing  for  the  government  of  the  Territory  of 
Missouri.     2  Stat.,  743.-548. 

June  13,  1812.       Providing  for  settling  the  claims  to  land  in  Missouri. 

2  Stat.,  748.— 103,  529,  680. 

Feb.  12,  1813.        Authorizing  the    President   to   take   possession    of 

West  Florida.     3  Stats.,  472.— 519. 
March  3,  1813.      Ptelatiug  to  private  land  claims  in  Missouri.    2  Stat., 

813.-665. 
April  12,  1814.      Providing  for  the  final  adjustment  of  land  titles  in 

Louisiana  and  Missouri,   &c.     3  Stat.,  121. — 174, 

507,  738,  758. 
Feb.  17,  1815.       For  the  relief  of  the  inhabitants    of  Xew  Madrid. 

3  Stat.,  211.— 656,  665. 

March  5,  1816.      Granting  bounty  lands  to  Canadian   volunteers.     3 

Stat.,  256.-571. 
April  16,  1816.      Granting  bounty  lands,  &c.     3  Stat.,  285.-562. 
March  1,  1817.      Providing  for  the  admission  of  Mississippi  into  the 

Union.     3  Stat.,  348.-548. 
March  3, 1817.      Providing    for    the    government  of  the  Territory  o 

Alabama.     3  Stat.,  371. — 517. 
March  3,  1817.      Relating  to  the  Creek  treaty  of  August  9,  1814.     3 

Stat.,  380.— 648. 
March  3,  1817.      Allowing  further  time  for  entering  donation  rights 

in  Michigan.     3  Stat.,  390. — 64. 
Dec.  10,  1817.       Admitting    Mississippi    into    the   Union.     3   Stat., 

472.— 519. 
March  9,  1818.      Authorizing    certain    purchasers    of  public  lands  to 

withdraw  their  entries,  &c.     0  Stat.,  200. — 64. 
March  2,  1819.      Providing  for  the  admission   of  Alabama  into  the 

Union.     3  Stat.,  489.-49,  518. 


ACTS  OF  CONGRESS. 


793 


March  3,  1819.     For  acljusting  claims  to  laud,  &c.     o  Stat.,  528.— G5. 

180." 
Dec.  14,  1819.       Admitting  Alabama  into  the  Union.     3  Stat.,  G08, 

519. 
March  6,  1820.      Providing    for    the   admission   of  Missouri  into  the 

Union.     3  Stat.,  545.-52,  369,  451,  529. 
April  24,  1820.      An  act  making  further   provision   for  the    sale    of 

the  public  lands.    3  Stat..  566.-27,  65,  66,  71,  595. 
May  8,  1820.         For  the  relief  of  the  legal  representatives  of  Henry 

Willis.     6  Stat.,  246.-62. 
May  11,  1820.       Providing   for    the    adjustment    of    land    claims   in 

Louisiana.     3  Stat.,  573. — 737. 
April  26,  1822.     Relating  to  the  location  of  Xew  Madrid  certificates. 

3  Stat.,  668.-58. 

May  8,  1822.        For  adjusting  claims  to  land.  3  Stat.,  707.— 180. 
May  20,  1824.       Granting  land  to  the  city  of  Mobile,  &c.     4  Stat., 

66.— 509. 
May  20,  1826.       Relating  to  the  selection  of  school  lauds.     4  Stat., 

179.— 466,  494. 
May  22,  1826.       Authorizing  the  re-location  of  certain  bounty  lands. 

4  Stat.,  190.-574. 

March  3,  1827.      For  the  relief   of  the  legal  representatives  of  Giles 

Egerton.    6  Stat.,  366. — 645. 
May  23,  1828.       For  the  relief  of  certain  purchasers  of  public  land. 

4  Stat.,  286.-561. 
May  24,  1828.       Confirming  private  land  claim  to  Francois  Valle  and 

others.     6  Stat.,  386. — 451. 
May  28,  1830.       Relating  to  the  removal  of  certain  tribes  of  Indians. 

4  Stat.,  412.— 299. 
May  29,  1830.       Granting  pre-emption  rights.     4  Stat.,  420.-24,  29, 

77,  97,  113,  126,  172,  319,  505,  566,  721. 
March  2,  1831.      Granting  laud  to  Arkansas.     4  Stat.,  473. — 99. 
March  3,  1831.      To  create  the  office  of  surveyor-general  for  Louis- 
iana, &c.     4  Stat.,  492.— 182. 
April  5,  1832.       Pre-emption  act.     4  Stat.,  503.— 107.  130. 
June  15,  1832.       Granting  one  thousand  acres  of  land  to  Arkansas 

4  Stat..  531.-86,  97,  112. 
July  4,  1832.         Granting  land  to  Arkansas.     4  Stat.,  563.-99. 
July  9,  1832.         Providing  for  the  final  adjustment  of  private  land 

claims  in  Missouri.     4  Stat.,  565. — 57,  679. 
July  14,  1832.       Pre-emption  act.     4  Stat.,  603.-97,  113,  126,  566. 
March  2,  1833.      Providing  for  the   final  adjustment  of  land  claims 

in  Missouri.     4  Stat.,  661.-679. 
March  2,  1833.      Authorizing  the  sale  of  land  granted  to  Arkansas. 

4  Stat.,  667.— 109. 


794  ACTS  OF  CONGRESS. 

June  19,  1834.      Reviving  pre-emption  act  of  1830.    4  Stat.,  678.— 

32,  132,  505,  5GG. 
June  20,  1834.      Relating  to  the  sale  of  lands  in  Illinois.    4   Stat., 

087.— 35. 
June  30,  1834.       Prohibiting  settlement    on    Indian  reservations.     4 

Stat.,  730.— 397. 
May  20,  1836.      An  act  to  give  effect  to  patents  for   public   lands 

issued  in  the  names  of  deceased  persons.    5  Stat., 

31.-249,  2G0,  209,  579. 
June  15,  1836.       Providing  for  the  admission    of  Michigan    into  the 

Union.     5  Stat.,  49.— 195. 
June  23,  1836.       Providing  for  the  admission  of  Arkansas    into  the 

Union.     5  Stat.,  58.-52.  492. 
June  23,  1836.       Providing    for    the  admission  of  Michigan  into  the 

Union.     5  Stat.,  59.-318,  459. 
July  2,  1836.         Providing  for  laying  off  the  town  of  Port  Madison, 

&c.     5  Stat.,  70.— 725. 
July  2,  1836.         Confirming  the  sales  of  public  lands  in  certain  cases. 

5  Stat.,  73.-37.  532. 
July  2,  1836.         An  act  for  the  relief  of  William  Pollard's  heirs.     6 

Stat.,  680.— 509. 
July  4,  1836.         An  act  to  reorganize  the  General  Land  Office.     5 

Stat.,  107.— 139,  150,  589,  621. 
July  4,  1836.         Confirming  private  land  claims  in  Missouri.     5  Stat., 

127.— 58. 
January  9,  1837.  Providing  for    the    disposition    of  the    proceeds    of 

ceded  Indian  lands.     5  Stat.,  135.— 398. 
March  3,  1837.      Providing  for  laying  off  the  town  of  Fort  Madison, 

&c.     5  Stat.,  178.-725. 
March  3,  1837.      Relating    to    Choctaw    treaty    of    1830.      5    Stat., 

180,.— 286. 
June  22,  1838.      Pre-emption  act.     5  Stat.,  251.-15,  172,  319. 
March  3,  1841.      Authorizing  recorder  to  sign  land  patents.     5  Stat., 

416.— 590. 
Sept.  4,  1841.       Granting  land  to  the  States  for  purposes  of  internal 

improvement.     5  Stat.,  455.— 161,  502,  721. 
Sept.  4,  1841.       Pre-emption  act.      5  Stat.,  455.-1,  44,  54,  75,  88,  90, 

124,   133,   143,   168,   183,   200,   208,  211,  469,  640, 

680,  747. 
July  7,  1842.'        Relating  to   the  location   of  bounty  land  warrants. 

5  Stat.,  497.-563. 
August  23,  1842.  Relating    to    Choctaw    treaty    of    1830.      5    Stat., 

515.-286. 
March  3, 1843.      Relating  to  pre-emption  rights,  &c.     5  Stat.,  620.— 

143. 


ACTS  OF  CONGRESS. 


795 


March  3,  1843. 

May  23,  1844. 
August  3,  1846. 

August  0,  1846. 

Feb.  11,  1847. 

March  1,  1847. 

May  29,  1848. 

March  3,  1849. 

March  3,  1849. 

Sept.  26,  1850. 

Sept.  27,  1850. 
Sept.  28,  1850. 
Sept.  28,  1850. 
March  3,  1851. 

March  3,  1851. 

March  22,  1852. 
June  10,  1852. 
March  3,  1853. 
March  3,  1853. 
March  1,  1854. 
April  6,  1854. 
May  30,  1854. 
June  29,  1854. 
July  17,  1854. 


Relating  to  exemplifications  of  records  of  the  Gen- 
eral Land  Office.     5  Stat.,  627.-586. 
Town  site  act.     5  Stat.,  657.— 196,  269. 
Providing    for    the    adjustment  of  suspended    pre- 
emption claims.     9  Stat.,  51. — 502. 
Providing  for  the  admission   of  Wisconsin  into  the 

Union.     9  Stat.,  56.-488. 
Granting   bounty   land   warrants.      9  Stat.,    123. — 

561,  563. 
Providing  for  the  sale  of  mineral  lands  in  Michigan. 

9  Stat.,  146.— 464,  465. 
Admitting    Wisconsin    into    the    Union.     9    Stat., 

233.-489. 
Establishing  the  Interior  Department.     9  Stat.,  395. 

—139. 
Establishing  the  Territorial  government  of  Minne- 
sota.    9  Stat.,  403.— 469. 
Relating  to  the  sale  of  mineral  lands  in  Michigan. 

9  Stat.,  472.-464,  465. 
Oregon  donation  act.     9  Stat.,  496.-241,  249,  261. 
Swamp  land  grant.    9  Stat.,  519.— 430,  435,  442,  448. 
Granting  bounty  land  warrants.     9  Stat.,  520. — 565. 
Allowing   pre-emptions  on    the    '"Bastrop  Grant" 

in  Louisiana.     9  Stat.,  597.-130. 
An    act   to   ascertain  and   settle  the  private  land 
claims  in  California.    9  Stat.,  631.-2,  60,  385,  500, 
588,  599,  608,  632,  777. 
Making    land    warrants    assignable.     10  Stat.,  3. — 

565,  706,  741. 
Granting  land  to  Missouri  for  railroads.     10   Stat., 

8.-350,  435,  443. 
Extending  pre-emption  rights  to  certain  lands.     10 

Stat.,  244.-02,  108.  384,  387,  641. 
Providing  for  the  survey  of  the  public  lands  in  Cali- 
fornia, &c.    10  Stat.,  246.-76,  87,  95,  387,  493,  496. 
An  act  for  the  extension  of  the  pre-emption  privi- 
lege in  California.     10  Stat.,  268.-76. 
Authorizing  the  entry  of  the  town  site  of  Council 

Bluffs,  Iowa.     10  Stat.,  273.-274. 
Organizing  the  Territories  of  Nebraska  and  Kansas. 

10  Stat.,  277.-47,  183,  492. 
Granting  land  to  Minnesota  for  railroads.     10  Stat., 

302.— 338. 
Authorizing  the  issue  of  Sioux  half-breed  scrip.     10 
Stat.,  304.— 333,  584. 


79rt  ACTS  OF  CONGRESS. 

July  22,  1854,       Establishing  the  olHces  of  Surveyor  General  of  New 

Mexico,  Kansas,  acd  Nebraska.     10  Stat.,  308. — 

43,  50,  300. 
August  3,  1854.    An  act  to  vest  in  the  several  States  and  Territories 

the  title  in  fee  of  the  lands  which  have  been  or  may 

be  certilied  to  them.     10  Stat.,  346.-394. 
August  4,  1854.    Graduating  the  price  of  the  public  lands.     10  Stat., 

574.— 130. 
August  4,  1854.    Repealing   railroad    laud   grant    to   Minnesota.     10 

Stat.,  575. — 338. 
August  4,  1854.    Extending    the    right   of  pre-emption    over   unsur- 

veyed  lands  in  Minnesota.    10  Stat.,  57G. — 138,  470. 
March  2,  1855.    For  the  relief  of  purchasers    of  swamp   lands.     10 

Stat.,  G34.— 431,  450. 
May  15,  1856.       Granting  land  to  Iowa  for  railroads.     11  Stat.,  9. — 

373,  430. 
June  3,  1856.        Granting  land  to  Wisconsin  for  railroads.     11  Stat., 

20.— 66,  354. 
Feb.  26,  1857.       Providing  for  the  admission  of  Minnesota  into  the 

Union.     11  Stat.,  166.— 221,  469. 
March  3,  1857.      Establishing  additional  land  districts  in  Nebraska. 

11  Stat.,  186.-45,  51. 
March  3,  1857.      Granting  land  to  Minnesota  for  railroads.     11  Stat., 

195.— 543. 
March  3,  1857.     Confirming  swamp  land  selections.     11  Stat.,  251. — 

432,  442,  447. 
May  11,  1858.       Admitting  Minnesota   into   the   Union.      11    Stat. 

285.-336. 
May  19,  1858.       Relating  to  Sioux  half-breed  scrip.     11  Stat.,  292.— 

334. 
June  12,  1858.      Relating  to  appeals  from  decisions  of  Registers  and 

Receivers.     11  Stat.,  326,  Sec.  10.-142. 
May  26,  1860.       To  settle  titles  to  lands   set   apart  for    half-breed 

Kansas  Indians.     12  Stat.,  21.-291. 
June  14.  1860.      Relating   to   the   survey  and   location   of  confirmed 

private  land  claims  in  California.      12    Stat.,  33. 

-599,  621,  784. 
Jan.  29,  1861.       Admitting  Kansas  into  the   Union.     12  Stat.,  126. — 

52. 
March  2,  1861.     Confirming  the  titles  of  purchasers  of  certain  lands 

in  Iowa.     12  Stat.,  251.— 261. 
April  25,  1862.     Amending  act   of  June    3,   1856,  granting  land  to 

Wisconsin  for  railroads.     12  Stat.,  618. — 67. 


ACTS  OF  CONGRESS.  797 

May  20,  18G2.      An  act  to  secure  homesteads  to  actual  settlers  on 

the     public    domain.      12  Stat.,  ;^92.— 217,  21'J, 

224,  230,  232,  237. 
May  30,  18G2.       Relating   to  settlement  on   unsurveyed  lands.       12 

Stat.,  410.— 70. 
July  1,  18G2.         Granting  land  to  the  Pacific  Railroads  and  branches, 

12  Stat.,  489.-383,  415,  422,  424,  085. 
July  12,  1802.       Conflrming  a  land  claim  in  the  State  of  Iowa,  &c., 

12  Stat.,  543.— 201. 
March  3,  1863.     Granting  land  to  Kansas  for  railroads.      12    Stat.. 

772.-389. 
March  3,  1803.      Granting  the  right  of   pre-emption   to  certain  pur- 
chasers on    the  "  Soscol    Ranch,"  in   California. 

12  Stat.,  808.— 1. 
March  21,  18C4.    Providing  for    the    admission  of   Xevada   into   the 

Union.     13  Stat.,  30. — 470. 
April  19,  1804.      Providing  for  the  admission  of  Nebraska  into  the 

Union.     13  Stat.,  47. — 45,  52. 
May  5,  1804.        Granting  land  to  Wisconsin  for  railroads.     13  Stat., 

CO.— 355. 
May  28,  1804.       For  the  relief  of  the  citizens  of  Denver,  Colorado. 

■  13  Stat.,  94.— 209. 
June  30,  1864.       Granting   the   Yosemite    Valley   to   California.     13 

Stat.,  325. — 74. 
July  2,  1804.         Amending  the  act  of  July  1,  1862,  granting  land  to 

the    Paciflc   Railroads    and  bi'anches.     13  Stat., 

356.-384,  414,  425,  086. 
July  2,  1804.         Granting   land  to  Burlington  &  Missouri  River  Rail- 
road, in  Nebraska.     13  Stat.,  304,  sect.  19. — 414. 
Jul}'-  4,  1800.         Concerning   certain  lands   granted  to  Xevada.     14 

Stat.,  85.-482. 
July  23,  1806.       Confirming  selections  made  by  California.     14  Stat., 

218.— 490. 
July  26,  1806.       Granting  the  right  of  way  to  ditch  and  canal  owners 

over   the  public   lands,  &c.     14   Stat.,  251, — 476, 

493. 
July  26, 1860.       Granting   land  to   Kansas  for   railroads.     14   Stat., 

289.-413. 
July  26,  1866.       Granting  right  of  way  through  military  reserves  to 

Union    Pacific  Railroad  Company  and  branches. 

14  Stat.,  367.— 380. 
March  2,  1867.      Granting  land  to  Kansas  for  bridge   purposes.     14 

Stat.,  573.-382. 
March  6,  1808.      Restoring    lands   to   market   along   the  line  of  the 
Pacilic  Railroads  and  branches.    15  Stat.,  39. — 208* 


798  ACTS  OF  CONGRESS. 

July  15,  1870.       Relating  to  sale  of   the  Osage  diminished  reserve 

lands.     IG  Stat.,  3G2.— 130. 
Feb.  G,  1871.        For  the  relief  of  the  Stockbridge  and  Munsee  tribe 

of  Indians.     IG  Stat.,  404.— 492. 
April  19,  1871.      Enabling  the  Leavenworth,  etc.,   Railroad  Co.,  to 

change  its  route.     17  Stat.,  5. — 393. 


I  isr  D  E  X 


ABANDON  Men  1. 

Of  possepsiou  of  public  Iniid  an  abandonment  of  tlic  claim.  S. 
Of  pre-emption  claim,  what  con>Jtitutes.  140. 

ACCEPl'ANCE. 

Of  patent  presumed.  <i<t".^.  'i•'^• 
When  in  condition  for.  r.();». 

ACCRE'i'fOXS. 

On  navigable  waters,  ownership  of,  '>2U.  ')\i4. 

ACi'IOXS  AT   LAW.     See  EJednien/. 

.\I)JUI>I(;A'1'I0N.S.     Sec  Land  Officers. 

ADMIXIS'IRATOK 

-Assignment  of  land  wan-ant  by.  ^>^>^K  •')('l- 
certificate  of  entry  by,  :")61 . 

ADVERSE   POSSESSION.     See  Statutes  of  Lhmtaiioits. 

AGENT. 

T^and  entered  by,  after  death  of  principal,  o6'^. 

AGREE  ME  NTS.     See  Contracts. 

ALIEN. 

May  pre-empt,  when,  744. 

ALIENATION. 

A  mortgage  is  not,  232.  •• 

Of  possessory  claims  on  public  land.  8-14,  274. 

Of  land  before  entry,  249,  261. 

Of  "  floats,"  or  the  right  to  enter  land,  ;'»6t),  569,  .■')76. 

ALIENAI'ION.  RESTRAINT  UPON. 
By  homestead  act,  230.- 
By  pre-emption  act,  124.  129.  130. 
By  Indian  treaties,  291,  296,  297,  29S. 
By  Oregon  donation  act,  261. 
By  acts  granting  land  warrants,  •"'>61,  .")(;9. 

AMENDED  ENTRY. 
A  new  entry,  714. 

APPEAL. 

While  pending,  land  not  sub.)ect  to  entry.  17(». 
To  supreme  court  from  State  courts.  715. 


800  INDEX. 

APPLIUATIUN. 

To  enter  land  must  conform  to  the  >tatute.  lU'j,  170. 
Of  funds'arising  from  sale  of  school  lauds,  4(;7, 

Ai'PKOPRlATlON. 

Of  public  land,  what  constitutes,  20,  33, 105, 307,  3J8,  434,  480,  Gal ,  (>«  I 

ASSIGNMENT. 

Of  pre-emption  right,  124,  129. 

Forged  on  land  warrant.  706,  708. 

Of  land  warrant  obtained  by  fraud,  o.'iO,  706,  708. 

implied  warranty  in,  707. 

guarantee  in,  707. 

in  blank,  708. 

by  administrator,  559. 

by  executor,  550. 

by  guai'dian,  561 . 

by  heirs,  56 1 . 

ASSIGN  MEN  1'  OF  ('ERTIFICAIE   OF  ENTRY. 
By  administrator,  561 . 
After  judgment  against  owner,  728. 
After  execution  of  title  bond,  728. 
Obtained  by  fraud,  728. 
As  collateral  security.  72s. 

No  implied  warranty  of  title  to  land  in  assignment  of,  728. 
Passes  title  to  the  land,  728. 
State  recording  laws  do  not  apply  to,  728. 

ASSUMED  NAME. 

Entry  made  hi,  valid,  750. 

ATTACKING  A  PAl'ENT. 

Who  may,  94,  19  •. 

ATTORNEY. 

Sale  of  floats  by  powers  of,  566.  5«9.  582. 
Power  of,  revoked  by  death  of  principal.  568. 

AUTHENITCAITON. 

Of  records  of  land  office,  mode  of,  200,  205. 

BANKRUPTCY. 

Improvements  on  public  land  pass  to  assignee  in,  1 1 . 

BANKS  AND  BEDS  OF  RIVERS,     See  Riparian  Rights. 
BEGINNING  SETTLEMENT. 
What  is,  9. 

BILL  IN  EQUITY. 

By  U.  S.  to  set  aside  patent,  414. 
BLANK   ASSIGNMENTS. 
Of  land  warrants,  708. 


INDEX.  '^01 

BONA  FIDE   POSSESSION. 

Wliat  constitutes,  3,  117. 

BONA  FIDE  PUR(.'HASERS. 

Who  are.  and  when  protected,  105,  114,  182,  284,  5.i3.  7()S. 
Who  are  not.  and  when  not  protected,  19S,  5.52.  579.  742. 
Jurisdiction  of  the  supreme  court  on  questions  of.  114. 

BONA  FIDE  RESIDENCE. 
What  constitutes,  190. 

BONA  FIDE  SETTLEMENT. 

What  constitutes.  4,  117,  205,  209,  218. 

BOUNDARY  LINE. 

House  of  pre-emptor  on,  15,  116,  241. 

Of  surveys  on  navigable  waters.  529,  581.  547. 

BOUNTY  LAND   WARRANTS. 
Not  commercial  paper,  706. 
Assignment  of,  necessary  to  pass  title,  70S. 
Equitable  title  passes  without  assignment,  708. 
Guarantee  in  sale  of,  707. 
Implied  warrantee  in  sale  of.  707. 
Issued  by  mistake.  5.53. 
Obtained  on  forged  papers,  564  706,  708. 
Forgery  of  assignment  of,  708. 
Assignment  of  by  administrator,  559. 

executor,  550. 

heirs.  561. 
Restraint  upon  sale  of,  before  issued,  563. 

land  located  with.  561,  569,  574. 
'I'axation  of  land  located  with,  703.  708. 

BREACH  OF  CONDITIONS. 

In  grant  of  land  to  railroads,  354. 

BUILDINGS. 

On  public  lands,  8-13. 

BURDEN  OF  PROOF. 

In  actions  in  courts,  212,  430.  435. 

CANCELLING. 

An  entry,  not  evidence  of  its  illegality.  216. 
A  patent  issued  by  mistake,  594. 
Rescinding  a  cancellation,  effect  of,  70S. 

CERTIFICATE  OF  ENTRY,     ^ee  As.^-ir/mneiif  nf. 
Title  acquired  by,  725. 

CERTIFIED  COPIES. 

Of  records  of  land  office,  mode  of  authentication.  2i)5. 


802  INDEX. 

CHANGE  OF  EN  TRY. 
A  new  entry,  711. 
In  what  cases  allowed,  714. 
Cannot  be  made  to  land  sold  to  another.  714. 

CHANCERY.     See  Equity. 

CITIZENSHIP. 

Of  pve-emptors,  170,  744. 

CLAIMS  ON  PUBLIC  LANDS,  8-15. 
"CLAIMED  OR  HELD  BY  INDIVIDUALS  " 

Terms  construed,  447 . 

CLERICAL  MISTAKES. 

In  issuing  patent,  may  be  corrected,  .i94,  fi07 

COLOR  OF  TITLE. 

Under  occupying  claimant  law.  7o(). 

COMBINATION. 

To  prevent  bidding  at  public  land  sales,  192. 

(COMMISSION  OF  OFFICER. 

The  word  "from  "  cxclndes  the  day  of  date,  307. 

COMMISSIONER  OF  GEN.  LAND  OFFICE.     See  Land  Otficers. 

COMMISSIONER  OF  PENSIONS. 

Power  of  to  cancel  land  warrants,  -itlo. 

COMMON  LAW. 

Extended  to  tei-ritory  ceded  by  Georgia,  -TlS. 

COMMUTING. 

Homestead  entry   under  Sth   section,  not  changed  to  pre-emption 
entry, 224. 

CONDITIONAL  KNIRY. 

Of  public  hunl>  not  permitted,  714. 

CONDITIONS. 

Precedent  in  grants,  o3o. 
Subsequent  in  grants,  356,  373. 

CONFIRMEE. 

Of  private  laud  claim  entitled  to  possession  of  all  land  claimed  until 
approval  of  survey,  'il . 

CONFIRMING  ACTS 

Con.strued,  37,  53,  58,  261,  449,  451,  532,  736. 

CONFIRMING   ITrLES. 

Where  patents  have  issued  to  deceased  persons,  249,  260. 

CONFIRMING  SWAMP  LAND  SELECTIONS,  434,  442,  447,  450. 
CONFIRMING  STATE  SELECTIONS  IN  CALIFORNIA,  496. 


INDEX 


803 


CONGRESS.     See  Ads  of  Cited. 
Power  of.  to  repeal  grants,  ii'-i^. 
Cannot  nullify  titles,  GaG. 
I'owerof,  to  repeal  Indian  treaties,  331. 

Power  of.  to  dispose  of  public  lands,  167,  815.  3-2G,  .il5,  GoG,  GGl,  GG3, 
764. 

CONTRACTS. 

Relating  to  possessory  rights  on  public  land.  S— l.l,  -261.  269. 

By  settlers  on  town  sites,  274. 

For  sale  of  land  before  entry,  261 . 

By  joint  pre-emption  settlers,  133,  141,  229. 

By  pre-emptor  before  entry,  130,  141. 

By  homestead  settlers,  224. 

By  settlers  under  graduation  act,  130. 

For  sale  of  pre-emption  floats,  -iGS. 

By  Indian  reservees.  297.  298. 

CONVEYANCE.     See  Alienafum. 

COURTS. 

Jurisdiction  of  to  review  decisions  of  land  officers,  lo,  29,  42,  55.  97. 

112.  142,  153,  1.59,  169,  173,  213,  469,  550,  635,  640. 
Will  not  take  jurisdiction  while  claims  are  pending  before  the  land 

ollice,  17I-) 

CO  V' EN  ANTS. 

In  deed  construed,  249. 

By  treaty-making  power,  331 . 

CROPS.     See  Growing/  Crops. 
CULITVATION. 

Required  by  Oregon  Donation  Act,  may  be  performed  by  friends  or 
servants,  241. 

DEATH. 

Of  homestead  settler,  title  vests  in  widow.  2<7. 
Of  patentee,  before  issue  of  patent,  249. 

DECISIONS.     See  Laud  Officers. 

DECLARATORY  STATEMENT.  BY  Pre-EMPTOR. 

Failure  to  tile  within  time  required,  157. 

Second  ftling  on  unoffered  land,  142. 

As  to  time  of  settlement.  133,  744.  • 

'The  entry  of  land,  not  included  in  flling,  171. 

DEEDS.    See  Alienalioa. 

Void  when  prohibited  by  law,  296,  297. 

With  warranty,  befoi-e  entry,  130. 

By  quit-claim,  before  entry,  130,  249,  296. 


804  iNbBX. 

DELIVERY  OF  PATENT. 

Not  necessary  to  pass  title,  598,  GOl,  008.  (ilVi. 

DEFECTS. 

In  entry  cured  by  patent,  H'i-^. 

DESCENT. 

By  homestead  law,  2ii7,  240. 

DESCRIPTION. 

Of  land  in  patent  controls  in  ejectment,  24. 

DOWER. 

Of  widow  in  land  sold  by  husband  before  entry,  180. 

DWELLING-HOUSE. 

Of  pre-emptor  on  quarter-section  line,  lo.  1  l(i,  241. 

EJECTMENT. 

By  settlers  on  public  land,  10,  11. 

Patents,  void  in.  42.  5.5,  87,  307,  314,  320.  341,  447,  502,  fi44. 

On  conflicting  patents,  G43.  671,  783. 

Questions  of  fraud  cannot  be  raised  in.  199. 

EJECTMENP  IN  srAFE  COUR  IS. 
On  equitable  title,  671,  679,  685,  767. 

EJECTMENT  IN  U.  S.  COURTS. 

Can  be  maintained  only  on  legal  title,  332,  656.  663.  664,  759. 

EMINENT  DOMAIN. 

Within  the  limits  of  a  State,  508. 

ENTRY. 

The  term  defined,  62. 

In  making,  the  statute  must  be  followed,  169. 

Conditional,  not  permitted,  714. 

In  an  assumed  name,  valid,  750. 

By  agent  after  death  of  principal,  569. 

Of  land  on  navigable  waters.  508,  531,  534,  535,  5.50. 

When  void.  ''9.  132.  171,  198,  327.  714. 

Made  according  to  public  survey,  1 5,  24. 

Survey  cannot  be  changed  after,  15. 

M.istakes  in.  728.  736. 

If  valid,  gives  equitable  title,  216.  728. 

Obtained  by  fraud,  171. 

Change  of.  710,  714. 

Re-entry  a  new  entry,  707. 

EQUITABLE  LIEN. 

By  assignment  of  certificate  of  entry,  728. 

equitablp:  mortgage. 

Contract  before  entry,  269. 


INDEX.  •  805 

EQUITABLE  TITLE. 

When  acquired,  21;").  047.  700. 

EQUITY. 

Jurisdiction  of  courts  of.  to  review  decision  of  land  officers,  IS.  29, 
42,  55,  97,  112,  142,  153,  159,  169.  173.  212,  469,  550.  635.  640. 

ERROR.     See  Mistake  and  Writ  of. 

\\\  surveys  cannot  be  corrected  after  sale  of  land,  15.  -24. 

ESTOPPEL. 

Title  by.  58.  124,  232,  569. 

By  acquiescing  in  proceedings,  165. 

By  taxation,  442. 

By  selecting  lieu  land.  459. 

Doctrine  not  applied.  2(iO.  647.  706.  74!S. 

EVIOENCE.     Parole. 

To  injpeach  patent,  S7.  447. 
When  not  admissible,  442 . 

To  establi^^h  character  of  s\vani|»  laiul,  430.  43S.  447. 
As  to  line  of  survey,  534. 

Xot  admissible  to  show  that  a  power  of  attorney  was  intended  to  he 
a  conveyance,  583. 

EVIDENCE.     Certificate  of  Entry. 
Of  title  in  State  courts,  29,  671,  679. 

U.  S.  courts,  656.  664. 
Certitied  copies  of  papers  on  tile  in  laud  otlice,  200,  307,  314. 
Certified  copy  of  record  of  patent  from  county  records.  744. 
Opinions  of  land  officers,  314. 
Certificate  as  to  facts  by  officers,  6U9. 
T'ertified  copies  of  selecti-ns,  315,  447. 

Of  tlie  cancellation  of  an  entry  not  evidence  of  its  illegality,  216,  564. 
Rescinding  a  cancellation  evidence  of  erroneous  cancellation*  70S. 
Of  mistake  In  entry,  728,  736. 

name  in  certificate  of  entry.  6S5,  745. 
Record  of  patent.  5S6. 
Recitals  in  patent,  5(;i. 

Memorandum  on  patent  record,  593,  598,  645. 
State  patent  nriina  facif  e\idence  of  title,  508. 
(Jf  right  of  pre-emption.  205. 

EXECUroRS. 

Assignment  of  land  warrant  by,  551. 

EXPAR'l'E. 

Proceedings,  binding  effect  of,  17,  19,  173,  475,  565.  749. 

FEE. 

In  U.  S.  until  patent  issues,  670. 


806  INDEX. 

FENCE. 

Ownership  of  on  public  land,  14. 
FICTITIOUS  NAME. 

Entry  of  land  in,  ""id. 
FINAL  DECISIONS.     See  Lund  Ojfia'.a. 

FLOATS. 

Sale  of,  ")66-")8o. 

FORCIBLE  INTRUSION. 

Pre-emption  right  cannot  be  obtained  by.  1 . 

FORGERY. 

Of  application  for  land  warrant.  700. 
Of  assignment  of  land  warrant,  o64. 
Of  papers  upon  which  a  private  land  claim  is  contirmed.  769. 

FORFEITURE. 

Of  grant  to  railroad,  3o4. 

FRACTIONAL  SECTIONS. 

Survey  and  sale  of,  ■_*4. 

FllAUD. 

In  obtaining  pre-emption,  1  \J..  \'.M\  171  . 

land  warrant.  70(>. 

assignment  of  land  warrant,  •'i'O. 

of  eertiticate  of  entry,  72?>. 

cancellation  of  an  entry,  171. 
Upon  the  U.  S  ,  who  may  raise  the  question  of.  192.  199. 
Must  be  specially  set  out  in  bill  in  equity,  202. 
.lurisdiction  of  courts,  in  cases  of,  1.52,  171,  728. 
.lurisdiction  of  commissioner  in  cases  of,  170. 

FUNCTUS  OFFICIO. 

Upon  issue  of  patent,  604,  6i{8. 

GOOD  FAITH. 

Under  the  occupying  claimant  law.  7')0. 

GRADUATION  ACT. 

Prohibits  contracts  for  sale  oi  land  before  entry,  130. 

GRANTS.     See  Railroads,  Sdtool  Lund.  State  Land,  and  Swamp  Land. 
To  fictitious  persons.  256. 
To  deceased  persons,  249.  261.  569. 
On  navigable  waters.  508,  529,  531,  534,  535,  550. 
In  presenti,  162,  346,  355,  369,  389. 
In  future,  328,  335,  373. 

GRANTS.    Legislative. 

Construed  strictly,  345,  388,  394. 
Operate  as  a  transfer  of  title,  370. 
May  be  repealed,  335. 


INBEX.  807 

GUARANTEE. 

Ill  sale  of  laud  warraut,  action  iipoii,  504.  7(>7. 

GUARDIAN. 

As.sifjiimeut  of  land  warrant  by,  oOl 

HEAD  OF  A  FAMILY. 

Under  Indian  treatie.'J,  275,  284. 
HEIRS. 

Assignment  by,  prcsinnptions  in  favor  of  tlieii-  conipetoncy.  5G1. 

HOMESTEADS. 

Settlers  entitled  to  riparian  rights,  219 

Vendor's  lien  before  entry  not  defeated  hj  entry,  10. 

Relinquishment  of,  consideration  for  a  note  given.  1.'^ 

Entry  of  timber  land,  right  of  settler  to  cut  timber.  217. 

Bona  fide  entry  and  settlement.  218.  422. 

Contracts  by  settlers  to  convey,  224. 

Mortgage  before  entry,  10.  230. 

Mortgage  before  final  proof.  229.  2.32. 

Mortgage  before  issue  of  patent,  23G. 

Taken  in  execution  for  debts  contracted  prior  to  is-ue  of  patent.  219, 

224. 
Commuting  under  8th  section  not  changed  to  a  iire-emption  entry, 

224.240.^ 
Death  of  settler  before  final  proof.  237,  240. 
'I'axation  of,  "03. 

HOUSE. 

Of  pre-emptor  on  boundary  line,  15,  110,  241. 

IDEM  SONANS.  744. 
IMPLIED  WARRANTY. 

In  sale  of  land  warrants,  707. 
INCORPORATED  (TTY\ 

Lands  within  limits  of.  not  subject  to  pre-emption.  193. 

INDIAN    TREATIES. 

Disposal  of  public  land  by,  307.  315.  320. 
When  supreme  law.  327. 
Conveyance  of  public  land  by.  332. 
May  be  repealed  by  act  of  Congress,  331 . 
Caddo  Treaty  of  July  1.  1S35  ;  7  Stat,,  472. 

Gave  a  fee  simple  title  to  the  persons  therein  named,  314. 
Cherokee  Treaty  of  -July  S,  1817  ;  7  Stat.,  156. 
A  lease  or  sale  of  the  land  by  the  reservee  w^as  voiil,  and  the  act  of 
May  29,  1830,  did  not  give  validity  to  them,  298. 
Chickasaw  Treaty  of  October  20,  1832  ;  7  Stat.,  381 . 

A  contract  of  sale  or  lease  by  reservee  was  void,  and  such  con- 
tracts were  not  validated  by  the  treaty  of  May  24,  liS34,  297. 


808  INDEX. 

INDIAN  TREATIES— Co?i/m?/er/. 

Chickasaw  Treaty  of  May  24,  1S34;  7  Stat..  450. 
Land  granted  to  the  head  of  a  family  for  each  ciiihl,  was  hcM  by 
the  reservee  in  trust  for  the  children.  201. 

Upon  the  selection  being  made,  the  legal  title  vested  in  the  res- 
ervee, 307. 

Chippewa  Treaty  of  September  24,  1819  ;  7  Stat..  203. 
'I'he  selection  by  the  reservee  gave   the  legal  title  to   tlie   land 
selected.  313. 
Chippewa  Treaty  of  September  30,  1854  ;  10  Stat..  1,109. 

1 .  Did  not  authorize  the  selection  of  land  outside  of  the  territory 
ceded  by  the  treaty  to  the  United  States. 

2.  The  treaty -making  jjower  cannot  confer  upon  tlie  land  depart- 
ment any  authority  in  respect  to  tlie  sale,  conveyance,  or  dis- 
posal of  the  public  lands. 

3.  A  patent  issued  upon  a  selection  of  land  outside  of  tlie  ceded 
territorjr  is  void  on  its  face,  320. 

Chippewa  Treaties  of  February  22,  1855;  10  Stat.,  1.1  •"):.,  and  May 
7.  1SG4;  13  Stat..  693. 

1 .  The  land  in  question  retained  its  original  character  as  an  In- 
dian reservation,  over  which  tlie  jurisdiction  of  the  State  curts 
did  not  extend,  for  civil  purposes  at  least. 

2.  The  estate  of  the  deceased  reservee  cannot  be  administered  on 
by  the  State  courts,  2.i8. 

Choctaw  Treaty  of  September  27,  18'30  ;  7  Stat..  333 
1     I'he  land  granted  to  the  head  of  a  family  for  each  child,  was  held 
by  the  reservee  in   his  own   riglit,    and   not   in  trnst  for  the 
children,  284. 
2.  A  white  man  who  had  married  into  the  tribe  was  entitled  to  land 
as  the  head  of  a  family,  284. 
Creek  Treaty  of  March  4,  1S32  ;  7  Stat.,  306. 

1.  The  iwenty  sections  of  land  to  be  selected  for  the  orplian  children 
were  not  to  be  taken  from  the  land  reserved  for  the  tribe,  275. 

2.  A  grandmother,  with  whom  some  of  her  grandcliildren  resided, 
was  entitled  to  land  as  the  head  of  a  family,  and  her  right  was 
not  prejudiced  by  the  neglect  or  refusal  of  the  locating  agent  to 
enter  her  selection,  -275. 

A  married  woman,  who  had  been  deserted  by  her  husband,  was 
entitled  to  land  as  the  head  of  a  family,  284. 
Kansas  Treaty  of  June  3,  1825;  7  Stat.,  244. 

A  conveyance  by  the  reservee,  without  the  approval  of  the  Secre- 
tary of  the  Interior,  was  prohibited  by  the  treaty,  and  void,  291. 
Miami  Treaty  of  June  5,  1854  ;  10  Stat.,  1097. 
The  mode  of  alienation  prescribed  by  the  treaty  cannot  be  changed 
by  the  laws  of  the  State,  296. 


INDEX. 


809 


INDIAN  'VUEATmS— Continued. 
Miami  'I'reaty  of  June  o.  1 854. 
'I'he  land   is  not  subject  to  State  taxation  while  iield  by  tlie  re- 
servee,  703. 
Osage  Treaty  of  July  21,  1S(>7  ;  14  Stat.,  687. 

I  he  deed  of  the  reservee,  when  approved  by  the  President  relates 
back  and  takes  effect  from  date  of  selection,  297. 
Ottawa  'I'reaty  of  June  24,  1862  ;  12  Stat.,  1237. 

A  conveyance  not  approved  by  the  President  is  void,  297. 
Ottawa  and  Chippewa  Treaty  of  March  28,  1836  ;  7  Stat.,  491. 

By  the  treaty  the  land  in  question  was  withdrawn  from  general 
location  and  pre-emption,  315^ 
Pottowatomie  Treaty  of  August  29,  1821  ;  7  Stat.,  218. 

Upon  selection  the  legal  title  to  the  land  vested  in  the  reservee, 
313. 
Pottowatomie  Treaty  of  October  26,  1832  ;  7  Stat..  394. 

A  conveyance  by  a  reservee  had  no  effect,  until  approved  by 
the  President  ;  it  then  took  effect  from  its  date,  297. 
Pottowatomie  Treaty  of  October  27,  1832  ;  7  Stat.,  399. 

1.  I'he  treaty  gave  a  title  to  the  reservee  which  he  could  legally 

sell  before  the  selection  had  been  made. 

2.  His  death,  before  the  selection,  did  not  defeat  the  title  from 

vesting  in  his  gTantee,  upon   the  selection  being  made  and 
approved,  567,  579. 
Shawnee  Treaty  of  November  2,  1854  ;  10  Stat.,  1056. 
Until  after  the  reservees  had  made  their  selections,  and  the  sur- 
plus of  land  remaining  had  been  set  apart  by  the  President,  no 
right  could  attach  to  any  part  of  tlie  land  by  scrip  location  or 
pre-emption.  298. 
Sioux  Treaty  of  July  15,  1830;  7  Stat.,  330. 
'I'he  location  of  scrip  issued  to  reservees,  under  the  act  of  July  17, 
1854,  vested  the  legal  title  to  the  land  in  the  reservee,  332. 
Winnebago  I'lvaty  of  August  1.  1829;  7  Stat  ,  323, 

1 .  i'lie  restrictions  against  alienation,  do  not  extend  to  tlie  heirs  of 
the  reservee. 

2.  Upon  the  death  of  the  reservee,  the  land  becomes  subject  to  the 
payment  of  his  debts,  296. 

Wyandotte  'treaty  of  January  31.  1855;  10  Stat.,  1159. 
I'he  land  granted  to  the  head  of  a  family  for  each  cliild,  was  held 
by  the  reservee  in  liis  own  right  and  not  in  trust  for  the  chil- 
dren, 291. 
riie  land  reserved  for  tlie  orplian  children  could  not  be  taken  in 
execution  and  sold,  even  after  tlie  child  became  of  age.  and  the 
ratitication  of  such  sale  by  the  Secretary  of  the  Interior  did  not 
give  it  validity,  297, 


810  INDEX. 

[NDIAN   'rWEA'VmS—Contimied. 

Wyandotte  Treaty  of  Janiiaiy  ;^1,  1855. 
Tlie  land  granted  to  the  competent  class  became  subject  to  State 
taxation  from  the  date  of  sale  by  the  reservee.  703. 

INHERITANCE. 

Under  Oregon  donation  act,  249,  2G1. 
homestead  act,  237. 

INJUNCTION. 

Courts  will  not  control/the  action  of  the  land  officers  by,  15-1,  722. 

INNOCENT  PURCHASERS. 

When  protected,  105,114,  182.  2S4,  553,  708. 
When  not  protected,  19S,  552,  579,  742. 

INTERNAL  IMPROVE MEN'T  GRANT.     See  state  selections. 

IRREGULARITIES. 

In  obtaining  title  cured  by  patent,  552. 

ISLANDS. 

Ownership  of,  in  lakes,  528. 

rivers,  528,  534, 

JOINT  SETTLEMENT. 

By  pre-emptors  on  unsurveyed  land,  133. 

JURISDICTION 

Term  defined,  603. 

Of  courts  to  review  decisions  of  land  officers,  15.  29,  42,  55,  97,  112, 

142,  153,  159,  169,  173,  213,  469,  550,  635,  640. 
Of  supreme  court  under  25th  section  of  judiciary  act,  112,  142,  469, 

671,  715,718,  720. 

LACHES. 

Not  imputed  to  one  in  peaceable  pos.session,  735,  749,  770. 

LAKES. 

Ownership  of  soil  under.  528. 

Rights  of  riparian  owners  on.  528,  531,  550. 

LAND. 

Not  subject  to  entry,  1,  33,  42,  55,  58,  62,  160,  193,  307,  315,  489. 

LAND  OFFICERS. 

Decisions  by— See  Jurisdiction. 

u-pon  ex  parte  testimony,  17,  173,  474,  565,  749. 
Action  of,  will  not  be  controlled  by  mandamus  or  injunction,  154. 

722. 
Presumptions  in  favor  of  the  actions  of,  273.  312,  552,  554,  648,  659, 
679. 


INDEX.  811 

LAND  OFFICERS.    Commissioner,  Jurisdiction  of. 

Over  decisions  of  registers  and  receiver,  139.  Ml. 

surveys  of  private  land  claims,  ;')9,  (>'21 . 

after  entry  of  laud,  lo. 
patents  after  execution  and  recording,  •j!)4,  (JDS.  n;?8. 
decisions  of  his  predecessor,  624. 

LAND  WARRANTS,     ^ae  Bounty  Land  Warrants. 

LEGAL  REPRESENTATIVES. 

Who  are,  under  the  acts  of  Congress,  o8.  755. 
LIMITATIONS.     See  Statutes  of . 

MANDAMUS. 

Courts  will  not  control  the  action  of  land  officers  by,  154.  722. 

MARRIED  WOMAN. 

When  the  head  of  a  family,  284. 

MEANDER  LINE  OF  SURVEY. 

When  a  line  of  boundary,  531,  534. 
When  not,  529,  535. 

MECHANICS'  LIEN. 

On  improvements  on  public  land.  11. 

MEMORANDUM. 

On  patent  record  not  evidence,  593,  598,  645. 

MILITARY  BOUNTY  LAND  WARRANTS.     See  Bounii/  Land  War- 
raids. 

MISTAKE. 

Of  land  officers  does  not  prejudice  rights   of  claimants,  15.  97,  154. 

171,  621. 
In  sale  of  possessory  rights.  13. 
In  description  of  land  entered,  728,  73G. 
In  name  of  gi-antee  in  certificate  of  entry.  685. 
In  name  of  grantee  in  patent,  594. 
Land  vrarrants  issued  by.  553. 
Patents  issued  by,  154.  177,  592,  604. 
Jurisdiction  of  courts  of  equity  to  correct,  152,  661.  728. 

MINERAL  CLAIMS. 

On  school  land  before  survey,  476. 

MORTGAGE. 

Is  not  alienation,  232. 

Bij  pre-emptoVy  before  filing,  10. 

proof  and  payment,  129. 
on  day  of  proof  and  payment,  129. 
By  Homestead  Settler,  before  entry,  10.  230. 
final  proof,  232. 
issue  of  patent,  236. 


812  Index, 

navigable  waters. 

Ownership  of  soil  under,  508,  528. 

NEGLIGENCE  OF  LAND  OFFICERS. 

Right  of  claimants  not  flefeated  by,  171,  807. 

NO'IICE      See  Bona  Fide  Fiuchasem. 

Rehearing  without  notice  to  claimants  void,  15,  170,  744. 
Of  final  survey  of  private  land  claim,  where  to  be  published,  what  to 
contain,  GOS. 

OCCUPANCY. 

By  pre-emptor,  what  constitutes,  204.  » 

OCCUPYING  CLAIMANT. 

When  entitled  to  pay  for  improvements,  750,  755. 

OFFERED  LAND. 

Ceases  to  be,  if  temporarily  withdrawn,  65,  206,  209. 

OPINIONS  OF  LAND  OFFICERS. 

Not  evidence  of  the  law.  ::!!4. 

OREGON  DONATION  AC  T. 

The  term  ''single  man  "  construed  to  inclnde  an  unmarried  woman, 

241. 
Contracts  by  settlers  to  sell  before  entry,  "249,  261. 
House  of  settler  on  quarter-section  line,  241, 
Manual  labor  on  claim  performed  by  servant  or  friend,  241. 
Death  of  husband  or  wife  before  issue  of  patent,  249.  261. 

OSAGE  INDIAN  LANDS. 

Not  subject  to  pre-emption.  41. 
Not  included  in  railroad  grant,  3SS. 

PAROLE  EVIDENCE,     iiee  Ecideuce. 

PATENTS. 

Requisites  of  execution,  586. 

Take  effect  as  a  conveyance  from  date  of  execution,  598,  608,  633. 
Jurisdiction  of  commissioner  to  recall.  594,  598.  608. 
Jurisdiction  of  commi^^sioner  over  the  land  after  issue  of,  637. 
Presumption  in  favor  of  the  validity  of.  650,  659. 
■Second  patent  for  same  land  inoperative,  643. 
Reserving  the  rights  of  others,  179. 
When  void  in  ejectment,  42,  55,  87,  307,  314,  327,  341,  447,  502,  644, 

651,  684,  714. 
When  yoid  on  their  face,  325,  341. 
Takes  effect  by  relation,  40,  166,  296,  482,  573. 
Obtained  by  fraud,  1 99. 

May  be  valid  as  to  part  of  the  land  and  void  as  to  part,  314. 
Issued  by  mistake,  154,  594. 
Is  conclusive  against  rights  subsequently  acquired,  94,  553,  606,  638. 


INDEX  813 

FATE'NTS—Coutiinied. 

May  bo  attacked  by  wliom,  !)4,  l!)i).  20;"). 

Recitals  in,  o76,  oTO,  713. 

Record  of  as  evidence,  ."iSS,  5!):!,  COS. 

MemoiMudum  on  record  of.  not  evidence.  o98,  (;20,  (i4r). 

State  recordlno-  laws  do  not  apply  to,  7U. 

Issued  after  death  of  patentee,  '249,  2('>] .  •"ifjO. 

Bill  by  U.  S.  to  annul,  174. 

Issued  by  States,  prim  i  Jade  evidence  '  f  title,  ")08. 

PERSONAT.  RESIDENCE. 
What  constitutes.  '2.{.  140. 

POSSESSION. 

Notice  of  equitable  title.  7:3.". 

I>()SSESSORY  RIGHTS. 

Of  settlers  on  public  land.  1-1  •'>.  •iUl. 

POWER  OF  ATTORNEY. 

Sale  of  floats  by,  561,  5(j(;  r,G!),  .1X2. 
Revoked  by  death  of  principal,  -"jHS. 

PRE-EMPTION.— Lands  not  Subjkct  'jo. 
Reserved  for  military  purposes,  29. 
Salt  spring-s  and  salines,  42. 

Rc^served  for  the  satisfaction  of  private  land  claims.  ")."i.  "s.  l-")9. 
In  the  possession  of  a  hona  file  settler,  I. 

Within  the  limits  of  an  incorporated  city.  lS;i.  ■ 

Directed  to  be  sold  in  a  particidar  manner.  41,  :ur,.  -^ 

Erroneously  certitied  to  a  State,  41 . 
Within  an  Indian  reservation.  3f)(!. 

PRE-EMPTION. 

Abandonment  of,  what  constitutes,  200. 

Cannot  be  initiated  by  intruding-  upon  the  possession  of  another, 

1,12. 
Not  prejudiced  by  refusal  of  land  oflScers  to  allow  entry,  1  ')S.  l.')9. 
Cannot  be  set  up  where  no  steps  have  been  taken,  219. 
Of  settlers  on  Soscol  ranch,  in  Cal.,  1. 
Of  unoffered  lands.  206,  209.  * 

'Two  declaratory  statements  on  unollered  land^',  142.  l.)S. 
Filing  not  made  within  three  months  after  settlement,  142,  74S. 
Filing  not  made  within  three  months  after  survey,  49."i. 
Entry  of  land  not  included  in  filing.  171 . 
Entry  confined  to  quarter-section  on  which  dwelling  is  situated 

95,  97. 
Entry  obtained  bv  fraud,  19,  112,  130,  170,  171,  1S3. 
Rights  acquired  by  valid  entry,   15,  97,  124,  142,  158,  171,  174,   178, 

213. 


814  INDEX. 

PRE-EMPTION— Cow/Z/n/eri. 

No  riglits  acquired  by  an  illegal  entry,  la,  2i),  174. 
Homestead  commuted  under  8th  section  is  not  changed  to.  224, 
Proof  and  payment  required  before  public  sale,  'VMi. 

PRE-EMPTION.— Settlement. 
By  an  unqualitied  person,  748. 
Priority  of.  gives  priority  of  right,  1U;J,  1(56,  212. 
Rights  acquired  by.  as  against  the  United  States.  I-'.  159. 

others.  97,  li59. 
And  residence  required,  117,  190,  200. 
Must  be  reasonable  as  to  time  and  mannei',  205. 
On  school  sections  before  survey,  87,  469,  493. 
Prevented  by  sickness  in  family,  204. 
Prevented  bj'  threats  of  violence,  204. 
Residence  on  quarter-section  line,  15,  116. 

PRE-E  MP  ITON.— Settlers 

Sale  of  improvements  by,  11,  12,  130. 

Entitled  to  peaceable  possession.  1,  12. 

Contracts  by  joint,  141,  229. 

Agreements  to  sell  before  entry,  130,  133,  141. 

Sale  of  land  before  entry.  129,  130. 

Sale  of  floats,  568. 

Sale  of  land  before  issue  of  patent.  124. 

Mortgage  given  by.  before  entry,  10.  129. 

Mortgage  given  bj^  on  day  of  entrj-,  129. 

PRp:-EMPriON.— Decisions  OF  Land  Officers. 
Upon  questions  of  lavp,  33.  142,  159,  206. 
Upon  questions  of  fact,  33,  139,  159,  170,  178. 
Conclusiveness  of,  17,  33,  114,  139,  142,  158,  178. 

PRESCRIPTIVE  RIGHTS. 

Cannot  be  acquired  against  the  United  States,  769. 

PRESEN  r  GRAN  IS. 

Of  land  for  school  purposes,  92,  451,  459.  469,  476,  482,  493. 
Of  land  for  railroad  purposes,  355.  373. 
Of  swamp   and  overflowed  lands,  435. 

PRESUMPTIONS.     See  Land  Officers. 
PRESIDENT  OF    THE  UNITED  STATES. 

Authority  of,  to  reserve  land  from  sale,  35. 

Cannot  revoke  the  acts  of  his  predecessor,  269. 

PRIORITY, 

Of  right  gives  priority  of  title,  166,  306. 

Of  pre-emption  settlement  gives  priority  of  riight  to  enter,  212. 

PRIVATE  ENTRY. 

Not  permitted  on  unoftered  land,  65. 


INDKX.  815 

PRIVATE  LAND  CLAIMS. 

Juridical  possession,  oS.  772. 

'I'lic  survey  of,  ">!).  608. 

Jurisdiction  of  connnissioners  over  survey  of,  (JOS. 

Lands  witliin  limits  of.  excluded  from  settlement,  (>'>. 

Upon  rejection  of,  land  subject  to  settlement.  n2. 

School  sections  covered  by,  492. 

Publication  of  final  survey,  G08. 

Place  of  publication,  <J08. 

Form  of  publication.  008. 

Evidence  of  publication,  G08. 

Conrtictins;  confirmations,  78;^. 

Confirmation,  efiect  of  upon  the  rights  of  others,  7G!t,  783. 

Confirmations  obtained  upon  forged  papers.  709. 

VV'lien  subject  to  taxation,  70i!. 

PROH[BI  rORY  AC  rS.     See  Aliennlion. 
Xot  revived  by  implication,  ~)00,  r)7(j. 

PUBLIC  LAXDS 

Term  defined,  iiiSa. 

When  ottered,  and  unoft'ered,  05.  207,  212. 

PURCHASERS  OF  PUBLIC  LAND. 

Entitled  to  improveraent  on  the  land,  S,  11. 

On  navigable  waters,  o;n,  547. 

Takes  title  according  to  the  public  survey,  16,  24,  531. 

QUIT-CLAIM  DEED. 

By  settlers  on  public  land.  10,  14,  249. 
By  pre-emptor  before  entry,  130. 
By  Indian  reservee,  296,  297. 

RAILROAD  GR  \NTS,  from  page  335  to  442. 

To  Burlington  and  Missouri  River  Railroad  in  Nebraska,  Act  of  July 
2.  1804;  13  Stat.,  350. 

1.  There  are  no  lateral  limits  to  the  grant  within  which  the  selec- 
tion of  lieu  lands  are  confined. 

2.  Selections  may  be  tuadi'  along  the  whole  line  of  the  road  to 
make  up  quantity. 

3.  Selections  could  not  be  made  of  lands  on  the  north  side  of  tlie 
road,  in  lieu  of  lands  deficient  on  the  south  side,  411. 

To  Iowa,  by  Act  of  May  15,  1856  ;   11  Stat.,  9. 

1.  "■  Swamp  lands  ''  liaving  been  previously  granted  to  the  State, 
were  excepted  from  tlie  grant,  430. 

2.  Until  the  line  of  the  road  was  definitely  fixed  upon  the  ground, 
the  title  to  any  particular  section  did  not  \est  in  the  coniiKiny, 
434. 

.3.  Was  a  grant  in  prescnii.  vesting  the  title  in  the  State,  inunedi- 
ately  upon  the  location  of  tjie  line  of  the  road. 


816  INDEX. 

RAILROAD  GUA^TH— Con/ lnue< I. 

4.  One  hundretl  and  twenty  sections  of  laud  were  aiitliorized  to 

be  sold  before  any  part  of  tlie  road  had  been  constrncted.- 
;-).  'riiis  land  might  be  selected  anywhere  on  the  line  of  the  road, 
within  a  continuous  length  of  twenty  miles  on  each  side  thereof. 

0.  The  conditions  imposed  by  the  State  upon  the  road,  as  to  the 
completion  of  it.  were  conditions  .subsequent,  and  their  non- 
performance did  not  defeat  the  title  of  the  purchaser  from  the 
company  of  the  one  hundred  and  twenty  sections,  373. 

To  Kansas,  by  Act  of  March  3,  1803;  12  Stat..  772. 
Lands  within  the  limits  of  an  Indian  reservation  at  the  date  of 
the  grant,  are  excluded  from  the  grant,  3S8,  413. 
To  Minnesota,  by  Act  of  June  29.  1854  :  1')  .stat  .  302. 

The  State  acquired  no  title  to  the  lands  granted,  until  the  condi- 
tions of  the  grant  had  been  complied  with,  and  before  this  had 
been  done,  Congress  could  repeal  the  grant,  335. 
To  Missouri,  by  Act  of  June  10,  1852  ;  10  Stat.,  8. 

1.  Lands  granted  to  the  State  as  swamp  lands  were  excepted  from 
the  grant,  435,  442. 

2.  The  State  has  power  to  authorize  pre-emption  of  the  land 
granted,  350. 

To  Union  I'acific  Railroad  Co.,  by  Acts  of  July  1,  1862;  12  Stat., 
489  ;  and  July  2,  1804;   13  Stat.,  356. 

1.  A  fraudulent  homestead  on  the  land  at  the  time  the  right  of  the 
road  attached,  did  not  exclude  such  land  from  the  grant,  422. 

2.  I'he  right  to  land  within  twenty  miles  of  its  road  was  superior 
to  that  of  the  B.  and  M.  R.  R.  R.  Co..  wheje  the  gi-ants  over- 
lapped, 415. 

3.  Where  the  limits  of  the  respective  grants  to  the  company  and 
its  bi-anches  (the  Sioux  City  and  Pacific  <  o.;  overlap,  the  land  in 
the  common  territory  belongs  to  them  jointly,  424. 

4.  The  company  is  required  to  pay  the  costs  of  surveying  the  lands 
granted,  701.    . 

To  Western  Pacific  Railroad  Co.,  by  Act  of  July  1,  1862  ;  12  Stat , 
489. 

Lands  within  the  boundaries  of  a  Mexican  or  Spanish  claim,  which 
were  siihjiuh'ie  at  the  time  the  right  of  the  road  attached,  were 
excluded  fi'om  the  grant,  383. 
To  Wisconsin,  by  Act  of  June  3,  1856;  11  Stat.,  20. 

1 .  Was  a  grant  m  preseidi^  and  upon  the  location  of  the  route  of 
the  road,  the  title  to  the  lands  vested  in  the  State. 

2.  The'conditions  of  the  grant  were  subsequent,  and  no  one  except 
the  United  States  can  take  advantage  of  their  non-performance. 

3.  The  lands  have  not  reverted  to  the  United  States,  although  the 
road  was  not  constructed  within  the  period  prescribed  by  the 
grant,  3.54. 


INDEX.  817 

RECITALS. 

In  patents,  •"iTfJ,  579,  713. 

RECORDS. 

Of  patents  as  evidence,  oSS,  593,  GOS. 

Of  land  office,  mode  of  authentication,  -205. 

REFUXDIXG  OF  PURCHASE  MONEY. 
Not  a  bar  to  action  for  the  land,  19. 

REGISTER  AND  RECEIVER.     See  Land  Officers. 

REHEARING. 

Without  notice  void,  170. 

RELATION. 

The  doctrine  of.  as  applied  to  the  taking  effect  of  patents,  40,   16G, 
482,  .■■)73,  707,  710,  759. 

REMOVAL. 

Of  improvements  on  public  land  after  entry.  S,  14. 
Of  land  office,  ertect  upon  pre-emption  filings,  209. 

RES  AD.IUDICATE,  594,  fiOS,  634,  7-14. 

RESCINDING. 

r.'ancellation  of  an  entry,  effect  of.  708. 

RESIDENCE. 

What  is  a  bona  fide,  190. 

By  pre-empto'r  on  boundary  line,  15,  1  Ifi,  241. 

RE  SURVEY. 

Cannot  change  boundaries  of  prior  entry,  15. 

RESTRICTIONS  UPON  ALIENATION— See  Alienation. 
RIGHTS. 

Of  settlers  on  public  lands,  1-15,  58, 

RIPARIAN  RIGHTS. 

Of  homestead  settlers,  219. 

Grants  of  lands  on  navigable  rivers,  529,  547,  550. 

Grants  of  islands.  535. 

RIPARIAN   RIGHTS— OWNERSHIP. 

of  beds  and  shores  of  navigable  rivers.  50S,  528.  529. 

lakes,  528.  3.50. 
of  islands  in  navigable  rivers,  528,  529. 
of  sandbars,  531. 

of  land  between  meander  line  of  survey  and  river,  5;U,  .535. 
of  accretions,  529,  535. 

RULES. 

.May  be  prescribed  by  commissioner,  102, 


818  INDEX. 

SALE — See  Alienafioti. 

SALINE  LANDS. 

Reserved  from  sale,  42. 

SCHOOL  LANDS,  page  S7,  31."),  and  from  page  4'A  to  .")08. 
To  California  by  act  of  March  3,  ISo^  ;  10  Stat.,  244. 

Lands  upon  whicli  a  pre  emption  right  existed  at  the  date  of  survey 
were  excepted  from  the  grant,  if  the  right  was  perfected  within 
the  time  required  by  law,  87. 
If  the  pre-emptor  failed  to  perfect  his  right,  the  title  to  the  land 
vested  in  the  State  as  of  the  date  of  the  completion  of  the  sur- 
vey. 493. 
Lands  were  not  excluded  from  the  grant  because  they  contained 
minerals,  or  M'ere  included  within  the  limits  of  a  private  land 
claim  which  was  finally  rejected,  493. 
To  Indiana  by  act  of  April  19,  181(5 :  3  Stat..  289. 

Application  of  funds  arising  from  sale  of  school  lands.  4G7. 
1'o  Kansas  by  act  of  May  30,  18r.4 ;  10  Stat..  283. 

Operated  as  a  grant  to  the  teri'itory  of  sections  H!  and  3H  in  each 
township,  and  the  land  could  be  sold  l^y  the  territory  before  its 
admission  into  the  Union,  492. 
To  Michigan  by  act  of  June  23,  1836  ;  5  Stat.,  59. 

1 .  By  the  act  section  1 6  in  each  township  was  set  apart  for  school 
purposes. 

2.  Lands  containing  minerals  were  not  excepted  from  the  grant. 

3.  Upon  the  surveys  being  made,  sections  10  vested  in  the  .state. 

4.  The  State  could  sell  tlie  land  without  the  consent  of  Congress, 
459. 

To  Minnesota  by  act  of  March  3,  1849;  9  Stat  ,  403,  and  B'ebrnary 
26,  1857;  11  Stat.,  166. 
With  the  assent  of  the  State,  Congress  could  modify  the  grant,  so  as 
to  give  a  right  of  pre-emption  to  settlers  upon  school  sections, 
made  before  stirvey,  469. 
To*  Missouri  by  act  of  March  6,  1820  ;  3  Stat..  545. 

'I'he  confirmation  of  a  private  land  claim  after  the  date  of  the 
grant,  which  stood  rejected  at  the  date  of  the  act,  could  not  de- 
feat the  title  of  the  State.  4".l. 
"The  State  is  estopped  from  claiming  section    Ki.  where  another 
section  in  lieu  of  it,  has  been  selected  and  .sold,  4.">9. 
To  Nevada  by  act  of  March  21,  1864 ;  13  Stat.,  30. 

I>ands  which  were  occupied  for  mining  purposes  prior  to  the  sur- 
vey and  title  afterwards  perfected  under  the  mining  laws,  were 
excepted  from  the  grant,  476. 
By  the  act  of  July  4.  1866  ;  14  Stat.,  85. 

All  mineral  land  were  e.\cepted  from  the  grant  to  the  State. 
482. 


INDEX. 


819 


SCHOOL  l.Al^DS— Continued. 

To  Wisconsin  by  act  of  August  6,  1840  ;  9  Stat.,  ofi,  and   May  20, 
184S;  9  Stat.,  2^1^. 

1.  The  acts  appropriated  section  Hi  in  each  township  to  the  use  of 

the  State. 

2.  Lands  included  within  an  Indian  reservation  were  not  excep- 

ted from  the  grant,  482. 

SELECTIONS. 

By  State  must  conform  to  the  Statute,  318,  508. 

SETTLEMENT. 

What  constitutes,  114.  130,  202. 

SETTLERS. 

On  public  land,  rights  of,  1  to  15. 

SINGLE  MAN. 

The  term  construed  to  include  an  unmarried  woman,  241. 

SIOUX  HALF-BREED  SCRIP. 

Location  of,  gives  legal  title,  332. 
Restraint  upon  alienation  (  f,  •>82. 
SOSCOL  RANCH. 

Right  of  settlers  to  pre-emption.  1, 
S  TATE  COURTS. 

Ejectment  in,  662,  671,  679,  685,  767. 
STATE  PATENTS. 

Frima  facie  evidence  of  title,  oU8. 
STA'TE  SELECTIONS.— See  S^mmp  Lands  and  School  Lands. 
California,  confirming  act  of  Inly  23,  1866  ;  14  .Stat..  218. 

Lands  were  not  excluded  from  confirmation  as  being  "held  or 
claimed  under  a  valid  Mexican  or  Spanish  grant."  if  at  tlie  time 
proof  was  made  under  the  third  section  such  land  had  been 
excluded  from  the  grant,  by  a  survey  of  the  claim  by  the  United 
States.  490. 
Louisiana  act  of  September  4,  1841  ;  •'>  Stat.,  453. 

The  selection  did  not  give  a  legal  title.  502. 
Michigan  act  of  June  23,  1S36;  5  Stat..  59. 

1 .  A  selection  of  a  tract  of  less  than  160  aere.s  could  not  be  made. 

2.  I>and  appropriated  by  an  Indian  treaty  could  not  be  selected, 
315. 

Missouri  act  of  March  6,  1820  ;  3  Stat.,  545. 
Was  a  present  grant,  and  upon  selection  the  State  acquired  a  per- 
fect title,  369. 
Missouri  act  of  September  4,  184!  ;  5  Stat.,  453. 
Did  not  authorize  the  selection  of  land  reserved  from  sale,  159. 
STA'TUTE  OF  LIMITATIONS.  758.  768.  770. 
SUBS'TTTUTION. 

Of  land  warrant,  a  new  location,  707. 


820  INDEX, 

SUPREME  COURT.     ^eeJnrlvUdionof. 

SURVEYS. 

Cannot  be  changed  after  entry,  15, 

Purchasers  are  bound  by.  "24, 

Of  public  land  when  considered  complete,  24. 
^      Of  private  land  claims,  when  final,  CI.  (JOS. 

SWAMP  LANDS,  from  page  430  to  4r)(). 

Swamp  Land  Act  of  September  28,  1850  ;  •)  Stat.,  519. 

1.  Was  a  present  grant,  appropriating  the  lands  of  the  character 
mentioned  in  the  act,  430,  435,  443,  450. 

2.  Such  lands  were  excepted  from  subsequent  grants  to  railroads, 
430,  435. 

3.  Evidence  by  wliich  the  grant  may  be  established,  430,  435. 

4.  A  sale  of  tlie  land  by  the  (Tnited  States,  after  the  date  of  the 
act,  was  void,  314,  447. 

Confirming  entries  and  locations  of  Swamp  Land  Act  of  March  2, 
1855;   10  Stat,,  (534, 
The  act  did  not  give  them  validity  as  against  a  prior  purcliaser 
from  the  State.  450. 
Confirming  selections  of  Swamp  Land   Act  of  March  3,  1857  ;  11 
Stat,.  251, 
Confirmed  all  selections  made  and  filed  in  the  General  Laiid  Office 
prior  to  the  date  of  the  act.  whicli  wei'e  then  vacant,  434,447. 

TAXATION. 

Of  improvements  on  public  land,  702,  703. 

When  lands  become  subject  to,  700.  705. 

Of  land  entered  under  homestead  law,  703. 

Of  land  granted  to  railroads,  (i99. 

Of  private  land  claims.  702. 

Of  land  located  witli  spurious  warrant,  705,  70S. 

Land  granted  by  Indian  treaty,  703. 

In  case  of  change  of  entry.  710. 

When  operates  as  estoppel,  442. 

TERM  OF   OE^FICE. 

The  word  "  fi-om"  excludes  the  day  of  commission,  307. 

TERRFrORlES. 

Title  of,  to  beds  of  navigable  waters,  528. 

THREATS  OF  VIOLENCE. 

To  pre  emptor,  prevention  of  settlement,  204. 

TIMBER. 

Right  of  homestead  settler  to  cut,  217. 

TIME. 

In  which  pre-emption  proof  should  be  made,  207,  209. 


INDEX.  821 

TI'I'LE  OF  UNriED  STATES. 

Passes  and  vests  according  to  laws  of  U.  S.,  2'.),  40,  222. 

ru'LE. 

Acquired  by  certificate  of  entrj-.  725, 

assignment  of  certificate  of  entr}\  728. 
Bond  tor,  not  defeated  by  assignment  of  certificate  of  entry,  72S. 
Acquired  after  sale  of  land  enures  to  benefit  of  grantee,  o8,  124,  l:JO, 
2G1,  50.S,  ;■)«(),  569.571). 

TOWN  SITES. 

Lands  within  limits  of.  not  subject  to  pre-emption,  183. 

Eights  of  settlers  upon,  before  entry,  10,  12. 

Contracts  by  settlers  upon,  before  entry,  V6. 

Interest  of  settlers  upon,  before  entry.  274. 

Plan  of,  cannot  be  changed  to  the  injury  of  settlers,  275. 

Execution  of  the  trust.  275. 

Persons  entitled  under  the  act,  2G9.  274. 

Policy  of  the  law  discussed  183. 

TREA'i'Y.— See  Indian  Treaty. 

TRESPASS. 

Upon  public  land,  217,  219. 

UNOFFERED  LAXD. 

When  off'ered  land  becomes,  (J5,  20U.  209. 

U.  S.  COURTS. 

Ejectment  in,  332,  G5(>,  (iG3,  (;G4.  759. 

U.  S.  SUPREME  COURT. 

Jurisdiction  over  decisions  of  State  courts,  715-722. 

UNSlJRVEYED  L.\ND. 

Rights  of  settlers  upon,  11,  14.  73. 
Pre-emption  settlement  upon,  87,  95. 

VALLEJO'S  RE.JECTED  CLAIM. 
Right  of  pre-emption  upon,  1. 

VENDOR'S  LIEN. 

Upon  improvements  on  public  land,  10. 

VERBAL  TESTIMONY. 

When  admissible  to  impeach  a  patent,  87. 

VES'TED  INTEREST, 

When  aequu-ed  in  public  lands,  15,  53,  81,  86,  105,  153,  167,  171,  369. 

VOID  CON'TRACTS.     See  Contracts. 
Patents.    See  Patents. 
Deeds,  129,  296,  297. 
Mortgage,  129. 
Entries,  33,  55, 132,  171,  198,  327,  714. 


822  INDKX. 

VOIDABLE    PATEJ^TS,  94,  liM),  (m. 
WAUKANl'Y. 

Implied  in  sale  of  land  warrants.  707. 

Not  implied  in  assignment  of  certificate  of  entry,  728. 

Operates  as  estoppel,  12-I,  'ilti.  rM). 

WIDOW. 

Dower  in  improvements  on  public  land,  '•). 

Dower  iu  land  sold  before  entry,  I'M). 

Title  to  homestead  on  death  of  husband,  237,  2-K). 

WOOD. 

Cut  on  public  land,  ownership  of.  0,  14,  217. 

WRIT  OF  EKKOE. 

To  State  courts,  715-722. 


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LAW  LIBRARY 


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tOM  ANQMLES 


U'i  i 


I^S  ANGELES  " 


AA    000  758  362 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 
This  book  is  DUE  on  the  last  date  stamped  below. 


